THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


GIFT  OF 

PROF.  ROLAND  D.   HUSSET 


rhe  Treaty  of  Apxon 


)\    1  III     LIGHT  OF 


International  Law 


BY 

VICTOR  ANDRES  BELAUNDE 

Professor  at  the  University  of  Lima 

Correspondent   Member   of  the 

Royal   Spanish  Academy  and  of 

the  Royal  Academy  of  History  of 

Madrid 


WASHINGTON,  D.  C. 


The  Treaty  of  Ancon 


IN  THE  LIGHT  OF 


International  Law 


BY 

VICTOR  ANDRES  BELAUNDE 

Professor  at  the  University  of  Lima 

Correspondent   Member   of  the 

Royal   Spanish  Academy  and  of 

the  Royal  Academy  of  History  of 

Madrid 


WASHINGTON,  D.  C. 


To  the  memory  of  those  who  fell  in  the 
defense  of  the  territories  unlawfully 
withheld ;  to  the  patriotism  of  those  who 
arose  to  protest  against  the  Chilean  con- 
quest and  occupation;  to  those  who  have 
suffered  the  implacable  persecutions  of 
the  usurper  and  who  because  of  their 
being  faithful  to  Peru  were  driven  from 
their  homes  and  expelled  from  the  native 
land ;  to  all  of  their  children  who,  al- 
though born  under  a  foreign  flag,  have 
not  renounced  nor  shall  ever  renounce 
the  flag  which  they  received  from  their 
parents;  I  dedicate  these  pages  written 
in  the  midst  of  the  emotions  of  these  his- 
torical moments  and  with  the  painful 
vision  of  the  unfortunate  and  far  away 
motherland. 

F.  A.  B. 


THE    TREATY     OF    ANCON 


ITS  ORIGINS  AND  VIOLATIONS  IN  THE 
LIGHT  OF   INTERNATIONAL  LAW  :  :  :   : 


CONTENTS 


PAGE. 

The  Treaty  of  Ancon — Its  Origins  and  Violations  in 

the  Light  of  International  Law 5 

Chapter   I. — The  Treaty  was   Entered   Into   with    a 

Government  which   did   not  Represent  Peru 7 

Chapter  II. — The  Cession  of  Tarapaca  was  the  Con- 
secration of  a  Conquest 18 

Chapter  III. — The  War  Indemnity  and  the  Cession 

of  Tarapaca 32 

Chapter    IV. — Tarapaca    Passes    Without    Debts    to 

Chile    37 

Chapter    V. — Chile's    Purpose    of    Not    Establishing 

Definitive  Peace  on  Opening  a  New  Problem 42 

Chapter  VI. — The  Treaty  of  Ancon  was  a  Unilateral 

Imposition   and  an  Instrument  of  Oppression 51 

Chapter  VII. — Chile  Violates  the  Very  Treaty  Which 

It  Imposed 57 

Chapter  VIII. — The  Indivisibility  of  the  Treaty  of 
Ancon.  Its  Total  Nullity  Due  to  the  Violation 
of  the  Third  Clause 74 

Chapter  IX. — The  Juridical  Solution  of  the  Problem 

Created  by  the  Violations  of  the  Treaty  of  Ancon     93 


r^/ 


^    THE  TREATY  OF  ANCON— ITS  ORIGINS  AND  ^cj^I 
^        VIOLATIONS  IN  THE  LIGHT  OF   INTER-  " 
(        NATIONAL  LAW. 

The  war  of  the  Pacific  started  with  the  most 
flagrant  violation  of  International  Law,  namely,  the 
occupation  of  the  Bolivian  coast  on  the  11th  of 
February,  1879,  and  the  breaking  out  of  hostilities 
against  Peru  when  the  latter  proposed  to  Chile  the 
arbitration  established  in  the  treaty  of  1875. 

The  inflexible  logic  of  evil  led  Chile  to  violate 
in  the  prosecution  of  the  war,  not  only  the  rules  of 
international  law  but  the  most  elementary  principles 
of  the  Christian  civilization. 

The  war,  which  had  no  cause  other  than  to  despoil 
Peru  and  Bolivia  of  their  principal  riches,  ought, 
according  to  Chile,  to  be  waged  by  extreme  and  vio- 
lent means,  and  procuring,  at  any  rate,  not  the  vic- 
tory which  is  the  licit  end  of  the  struggle  but  the 
destruction  and  the  annihilation  of  Peru. 

This  affirmation  is  confirmed  not  only  by  the  testi- 
mony of  the  neutral  historians  such  as  Markham 
and  Caivano  but  also  by  the  testimony  of  the  Chilean 
historians,  and  principally  by  the  documents  collected 
by  the  assiduity  of  the  Chilean  historiographer 
Ahumada  Moreno, 

The  moral  consciousness  of  the  continent  has 
formed  on  them.  The  war  born  of  guilt,  developed 
in  the  midst  of  guilt  and  crimes,  had  to  end  with  a 
peace  which  should  also  be  a  crime.  The  treaty  of 
Ancon  has  a  bond  of  logical  correspondence  with  the 
attitude  of  Chile  on  initiating  the  war  and  carrying 
it  on.     As  the  annals  of  America  do  not  record  a 


691398 


more  iniquitous  war,  its  diplomatic  history  does  not 
register  a  more  monstrous  peace.  The  treaty  of 
Ancon,  in  its  spirit  and  in  its  letter,  constitutes  the 
most  evident  contradiction  of  all  the  principles  of  the 
international  science. 

To  demonstrate  the  foregoing  through  a  minutely 
precise  analysis  is  the  object  of  the  present  work. 


Chapter  I. 

The    treaty    was   entered   into    with   a  government 
which  did  not  represent  Peru. 

Doctor  Alzamora  has  proved,  in  the  brief  pre- 
sented by  the  natives  of  Tarapaca  to  President 
Harding,  that  the  war  ended  at  the  moment  when 
Peru  lost  the  "Huascar."  If  Chile  had  had  honest 
purposes  of  peace  it  ought  to  have  proposed  it  at  that 
moment.  But  as  its  aim  was  the  unlawful  appro- 
priation of  the  Peruvian  coast  of  Tarapaca,  it  pro- 
ceeded to  occupy  this  territory,  moving  afterwards 
into  Tacna  and  Arica. 

The  occupation  of  those  provinces  having  been 
consolidated,  it  was  naturally  to  be  presumed  that 
Chilej.hould  propose  the  peace.  The  American  gov- 
ernment believed  so  when  it  offered  its  good  offices 
which  were  reflected  in  the  fruitless  conferences  on 
board  the  "Jvackawanna."^)  But  as  Chile  did  not 
wish  the  peace  but  the  annihilation  of  Peru,  the  con- 
ditions proposed  at  those  conferences,  in  order  to 
cause  them  to  fail,  were  monstrous.  _The  so-called 
j:anipai£a.iiU-dma_w:as,lhen  startedj  the  clear  object 
of  which  was  the  destruction  of  the  capital  of  Peru, 
which  was  prevented  only  by  the  intervention,  so 
often  remembered,  of  Admiral  Du  Petit  Thuars,, 

The  Pierola  government  which  had  battled  with 
the  Chilean  armies  at  the  gates  of  Lima,  although  of 
revolutionary  origin,  evidently  represented  the  popu- 
lar will  and  counted  on  its  support  in  the  task  of 
organizing  the  resistance  which  it  effected  in  spite 
of  the  maritime  blockade  and  the  almost  absolute 
lack    of    economic    resources.     Notwithstanding    its 

7 


dictatorial  character,  explained  by  the  necessities  of 
the  war,  _Mr.  Pierola's  government  was  the  genuine 
representative  of  Peru.  The  taking  of  Lima  did 
not  deprive  it  of  that  character.  The  Peruvian  Dic- 
tator on  withdrawing  to  the  sierra  to  continue  the 
resistance  there,  as  did  the  Spanish  authorities  after 
the  evacuation  of  Lima,  was  not  deprived  of  any  of 
the  attributes  of  the  authority  which  he  exercised. 
All  of  Peru,  excepting  the  zones  occupied  by  the  in- 
vader, continued  to  obey  him.  As  the  Government 
of  the  Public  Defense  represented  France  in  the  war 
of  1871,  the  dictatorship  of  1880  represented  Peru. 
The  occupation  of  Lima,  the  constancy  and  the  bold-- 
ness  of  the  Dictator  being  known,  could  not  result 
in  the  anarchy  nor  the  acephalism  of  our  country. 
The  Pierola  government  had  been  recognized  by  all 
the  foreign  powers  and  by  Chile  itself.  The  discus- 
sions on  board  the  frigate  "Lackawanna"  had  been 
carried  on  with  the  agents  of  that  government.  The 
new  peace  negotiations  ought  to  have  been  carried 
on  with  the  agents  of  that  same  government. 

But  although  the  Dictator  appointed  Messrs.^Are- 
nas  Irigoyen  and  Alarco  as  his  plenipotentiaries,  the 
Government  of  Chile,  believing  itself  the  arbiter  not 
only  of  the  victory  but  of  the  political  destinies  of 
Peru,  refused  to  deal  with  them,  ignoring  the  only 
authority  that  existed  in  Peru. 

The  belligerent  may  be  rigid  in  its  conditions  and, 
if  they  are  not  accepted,  may  continue  the  hostilities ; 
but  there  is  certainly  no  author  of  treatises,  histo- 
rian, nor  man  of  common  sense  who  give  to  the  vic- 
torious country  the  unusual  prerogative  of  deciding 

8 


as  to  the  legitimacy  or  illegitimacy  of  the  government 
of  the  vaquished  country.  J[n_the_£resent  case  Mr. 
iPierola's  authority  to  negotiate  the  peace  had  the  ^ 
/supreme  consecration  of  the  facts;  the  definitive  title 
'which  the  effective  resistance  vi^hich  he  had  opposed 
and  continued  to  oppose  to  the  invader  gave  it. 

When  after  the  battle  of  Sedan  the  Government 
of  the  Public  Defense  M^as  formed,  and,  the  defense 
of  Paris  having  become  impossible,  it  moved  to  Bor- 
deaux, the  German  Government  did  not  think  of 
intervening  in  the  political  affairs  of  France,  it  ac- 
cepted the  fact  and  the  right  of  the  government  of 
Bordeaux  and  negotiated  the  peace  with  it.  This 
simple  comparative  recollection  causes  us  to  project 
in  full  relief  the  unqualifiable  attitude  of  Chile  on 
having  refused  to  negotiate  with  Pierola.  Let  us 
see  what  international  law  says: 

Moreover  as  no  State  may  interfere  in  the 
internal  affairs  and  constitutional  organization 
of  another  State,  it  may  not,  as  a  rule,  demand 
from  a  party  possessing  and  exercising  sovereign 
authority  what  title  it  has  to  conclude  inter- 
national engagements;  for  the  undisturbed  pos- 
session and  exercise  of  such  authority  may  be 
regarded  as  definite  proof  of  contractual  com- 
petence. .  .  . — Colleman  Phillipson,  "Termi- 
nation of  War  and  Treaties  of  Peace,"  p.  159. 

Chile's  attitude  on  having  refused  to  deal  with 
Pierola  represents,  therefore,  a  deed  without  prece- 
dent in  the  diplomatic  history  of  the  world,  and  the 
clearest  violation  of  the  rule  which  we  have  quoted. 

What  reason  did  the  Chilean  government  give  for 
refusing  to  deal  with  the  Pierola  government  ?     The 


following  pretext  was  invoked:  The  Secretary  of 
the  Dictatorship,  Mr,  Aurelio  Garcii_jL_ Garcia, 
had  made  the  most  serious  inculpations  against  the 
Chilean  military  command  regarding  the  violation 
of  the  Miraflores  armistice.  The  said  pretext  shows 
its  true  meaning  by  itself.  Governments,  on  ac- 
count of  war,  address  reciprocal  charges  to  each 
other.  These  charges  were  never  a  reason  for  pre- 
venting peace  conferences. 

The  true  cause  of  Chile's  attitude  was  the  con- 
viction that  the  instructions  given  to  the  dictator- 
ship's plenipotentiaries  did  not  permit  them  to  cede 
territory,  and  the  certainty  that  Pierola  was  going 
to  continue  an  efficient  and  powerful  resistance  with- 
out yielding  to  the  exigencies  of  the  conqueror. 

The  illusion  arose  then  in  Chile  that  the  great  de- 
sire of  peace,  stronger  than  in  the  capital  of  Peru, 
as  was  natural,  than  in  the  rest  of  the  territory, 
should  result  in  the  formation  of  a  new  government 
and  that  that  government  should  yield  to  the  Chilean 
exigencies.  But  Chile  was  mistaken.  It  is  true 
that  the  notables  of  Lima,  on  forming  the  govern- 
ment called  the^^overnment  of  Magdalena,  had  as  a 
definite  program  to  save  Peru  from  the  horrors  of 
territorial  invasion  and  from  the  continuation  of  the 
hostilities;  but  they  never  had  the  purpose  of  creat- 
ing an  instrument  docile  to  the  Chilean  plans.  Hap- 
pily for  the  honor  of  Peru  that  government  was 
presided  over  by  don  Francisco  Garcia  Calderon,  a 
man  as  great  for  his  intelligence  as  for  his  patriotism. 

If  Pierola  had  the  plan  of  resisting  the  Chilean 
exigencies  by  continuing  the  war,  Garcia  Calderon, 

10 


statesman  and  diplomat,  had  to  conceive  the  same 
ideal,  employing  different  means,  on  the  basis  of  the 
moral  support  of  the  great  Republic  of  the  North, 
the  sympathies  of  which  towards  Peru  were  known, 
although  they  had  not  until  then  had  efficacious 
manifestations.  The  Garcia  Calderon  government 
looked  upon  at  first  with  indifference  by  the  Peruvian 
communities,  due  to  the  mistaken  belief  that  it  repre- 
sented peace  at  any  cost,  began  to  attract  public 
opinion  from  the  time  when  it  became  notorious  that 
its  program  could  not  contain  the  renunciation  of 
Peruvian  territory  nor  the  acceptance  of  the  Chilean 
impositions,  and  that  it  involved,  on  the  contrary,  a 
vast  diplomatic  plan  destined  to  save  the  territorial 
integrity  of  Peru. 

"T"  And  just  as  Chile  refused  to  deal  with  Pierola 
when  it  knew  of  his  refusal  to  cede  the  territory,  it 
did  not  hesitate  to  commit  this  other  offense  against 
international  law  as  soon  as  it  learned  that  Garcia 
Calderon,  already  recognized  by  the  United  States, 
was  not  disposed  to  cede  an  inch  of  national  territory. 
To  the  astonishment  of  the  nations  of  America  the 
provisional  President  was  taken  prisoner  and  carried 
to  Chile. 

The  imprisonment  of  Garcia  Calderon  was  not 
going  to  produce  the  acephalism  of  Peru  as  Chile 
intended. 

The  country  having  been  won  over  to  the  diplo- 
matic plan  of  the  American  mediation,  the  Peruvian 
military  chiefs  who  obeyed  Pierola  decided  to  con- 
tinue the  resistance  under  the  new  government  which 
was  formed.     Montero,  commanding  officer  of  the 

11 


^orth,  accepted  the  first  Vice-Presidency  of  that 
Government,  and  General  Caceres,  commanding  of- 
ficer of  the  Center,  accepted  the  second  Vice-Presi- 
dency. Montero,  after  having  taken  possession  as 
head  of  the  Government,  went  from  Cajamarca  to 
Huaraz  and  from  Huaraz  to  Arequipa.  The  de- 
partments of  the  North  remained  under  the  orders 
of  General  Iglesias,  and,  as  the  country  was  unified 
under  the  leadership  of  Pierola,  it  remained  unified 
also  under  the  new  government  which  exercised  the 
effective  authority  in  all  the  territory  of  the  Repub- 
lic. 

International  law  clearly  imposed  on  Chile  the 
duty  of  entering  into  peace  negotiations  with  the 
Garcia  Calderon-Montero  government.  Far  from 
following  that  policy  Chile  preferred  that  of  exert- 
ing pressure  on  the  imprisoned  President,  refusing 
at  the  same  time  to  accede  to  the  latter's  legitimate 
pretension  of  returning  to  Peru  and  calling  together 
a  national  assembly  which  should  discuss  and  ratify 
the  bases  of  the  peace. 

That  pressure  was  exerted  through  Plenipoten- 
tiary Logan  whose  conduct  was  entirely  favorable  to 
Chile.  It  was  desired  to  obtain,  at  any  rate,  a  treaty 
of  peace  signed  by  Garcia  Calderon  in  circumstances 
comparable  only  to  those  in  which  Francis  I,  after 
Pavia,  was  a  prisoner  in  Madrid. 

If  every  treaty  of  peace  evidently  involves  the  co- 
action  of  force,  the  latter  becomes  more  grave  to  the 
point  of  constituting  an  effective  cause  of  nullity  of 
the  agreement  when  it  falls  on  the  negotiators.  Gar- 
cia Calderon  refused  to  accede  to  the  Chilean  pre- 

12 


tension,  pointing  out  the  only  road  which  science  in- 
dicated, namely,  that  of  discussing  the  bases  of  the 
peace  after  having  been  restored  to  his  authority  and 
with  the  sanction  of  an  assembly  which  should  repre- 
sent the  national  will  of  Peru  as  the  Assembly  of 
Bordeaux  had  embodied  the  national  will  of  France 
in  the  peace  negotiations  of  1871.  Chile  did  not 
wish  to  follow  the  straight  course  although  the  point 
which  most  interested  it  in  the  making  of  the  peace 
was  saved;  the  Congress  of  Arequipa,  that  is,  the 
legislative  branch  of  the  Garcia  Calderon-Montero 
government  had  resolved  to  acced£_  to.  the  cession  of 
Tarapaca.  The  jttjt_ude„of-,ChiJe  was  caused  by  its 
ne^v  exigency  concerning  the  Peruvian  debts  and  the 
occupation  of  Tacna  and  Arica,  and  had  besides  a 
^rpose  which  was  none  the  less  efiFective  because  un- 
confessed.  This  purpose  was  to  throw  Peru  into 
anarchy;  to  break  the  bonds  which  bound  it  to  Bo- 
livia and  which  the  Garcia  Calderon-Montero  gov- 
ernment had  succeeded  in  maintaining,  and  to  ren- 
der impossible  the  consolidation  of  a  strong  and  re- 
spectable government  which  should  be  able  to  accom- 
plish the  national  reconstruction.  It  was  necessary 
to  carry  out  the  program  of  destruction  and  annihi- 
lation of  Peru  by  means  of  violence,  of  intrigue  and 
of  political  intervention. 

The  plan  was  carried  out:  the  departments  of  the 
North  gathered  in  an  assembly  resolved  in  favor  of 
the  peace.  The  Government  of  Chile  encouraged 
the  program  of  the  Peruvian  leader  who  called  to- 
gether that  assembly,  giving  to  understand  that  it 
would  recognize  the  government  which  it  should  con- 

13 


stitute  and  presenting  at  the  same  time  difficulties 
in  the  way  of  negotiating  with  the  Arequipa  govern- 
ment. 

It  is  not  true  that  the  peace  was  not  made  because 
Peru  lacked  a  government  with  which  Chile  might 
deal.  Peru  had  had,  from  1880  to  1882,  govern- 
ments recognized  by  the  entire  country  and  with 

;   jurisdiction  over  the  territory  not  occupied  by  the 

1   enemy:    first    Pierola    and    afterwards    the    Garcia 

'.  Calderon-Montero  government. 

It  was  not  the  duality  of  governments  in  the  year 
1882  that  prevented  the  peace,  but,  on  the  contrary, 
it  was  the  Chilean  purpose  of  not  making  the  peace 
with  the  effective  government  that  caused  the  duality 
which  arose  afterward's.  Montan's  manifesto 
would  not  have  been  issued  and  the  Assembly  of 
Cajamarca  would  never  have  resolved  to  organize 

'^a  new  government  if  Chile  had  been  determined  to 
deal  on  the  bases  of  international  law  with  the  gov- 
ernment which  existed  in  Peru  and  of  which  the 
chief  of  the  departments  of  the  North  was  a  part. 
Chile  expected  that  this  leader  should  accede  to 
all  its  conditions.  It  was  mistaken  once  more.  On 
the  essential  point  relative  to  Tacna  and  Arica,  Igle- 
sias  remained  intransigent  as  the  Garcia  Calderon- 
Montero  government,  accepting,  in  lieu  of  the  occu- 
pation and  arbitration,  the  occupation  and  the  plebis- 
cite. 

The  government  of  General  Iglesias  did  not  legiti- 
mately represent  Peru.  Of  the  twenty  Peruvian 
departments,  only  seven  were  under  his  command, 
and  of  these  four  were  occupied  by  the  enemy.     The 

14 


nucleus  of  the  nation,  constituted  by  the  communi- 
ties of  the  Center  and  of  the  South,  obeyed  other 
authorities.  The  action  of  the  Iglesias  government 
could  be  extended  only  through  Chile's  influence, 
and,  even  from  the  economic  point  of  view,  depended 
upon  the  Chilean  authorities.  If  it  is  true  that,  ex- 
cepting the  aforesaid,  they  did  not  exact  of  Iglesias 
conditions  greater  than  they  exacted  of  the  other 
leaders,  the  object  of  Chile  in  recognizing  him  and 
dealing  with  him  was  to  maintain  its  influence  in 
Peru  for  some  time  and  to  produce  that  which  had 
to  follow,  namely,  civil  war. 

The  aim  of  the  Chilean  diplomacy  appears  clearly. 
It  was  not  the  peace  and  to  obtain  the  title  which 
should  legalize  the  conquest  of  Tarapaca  and  the 
occupation  of  Tacna  and  Arica.  Something  more 
was  desired :  to  produce,  after  the  ratification  of  the 
peace,  civil  war  in  Peru.  This  aim  was  accom- 
plished. The  national  sentiment  overthrew  Iglesias, 
thereby  furnishing  clear  proof  that  his  government 
was  illegitimate.  Authority  is  of  essential  import- 
ance in  case  of  international  agreements.  Phillip- 
son  says  in  his  aforementioned  work: 

"When  peace  negotiations  are  conducted 
with  a  revolutionary  Government,  the  question 
as  to  its  competence  to  bind  the  nation  by  a 
treaty  may  arise.  In  such  circumstances,  there 
can  be  no  doubt  that  the  existing  Government 
de  facto  may  vahdly  bind  the  nation  by  means 
of  conventions  with  other  Powers,  and  particu- 
larly by  peace  treaties,  if  the  said  Government 
and  its  acts  are  sanctioned  by  a  national  assem- 
bly recognized  explicitly  or  tacitly  by  the  people 
at  large."      (Page  159.) 

IS 


The  authority  of  a  government  is  judged  by  the 
material  criterion  of  the  territory  over  which  it 
exercises  its  jurisdiction,  and  by  the  moral  criterion 
of  its  support  in  the  public  opinion  and  in  the  national 
sentiment.  From  these  two  points  of  view  it  can 
be  affirmed  that  the  Iglesias  government  was  not  the 
de  facto  government  in  Peru.  Its  decrees  were  not 
respected  but  in  the  territory  occupied  by  the  con- 
queror and  the  popular  will  was  always  hostile  to  it. 
The  assembly  called  together  to  ratify  the  treaty 
and  gathered  hurriedly  was  the  fruit  of  imperfect 
and  simulated  elections;  no  real  elections  were  held 
in  almost  all  the  provinces  of  Peru. 

To  understand  that,  in  this  process  of  peace,  the 
attitude  of  Chile,  in  pursuance  of  machiavelian  plans, 
was  contrary  to  international  law,  it  will  suffice  to 
compare  it  with  the  attitude  of  Bismarck  twelve 
years  before,  without  forgetting  that  the  Iron  Chan- 
cellor is  not  the  most  perfect  example  that  can  be 
mentioned  of  respect  for  the  practices  of  interna- 
tional law.     We  read  in  Phillipson: 

The  Government  of  National  Defense — a 
Government  de  facto  from  the  latter  date — 
having  commenced  pourparlers,  early  in  Jan- 
uary 1871,  for  the  conclusion  of  a  general 
armistice,  with  a  view  to  the  establishment  of 
peace,  Bismarck  first  demanded  (in  a  note  of 
January  14)  that  this  Government  should  be 
formally  recognized  by  a  National  Assembly 
of  representatives  of  the  French  people,  in  order 
that  its  engagements  might  not  afterwards  be 
repudiated  as  the  acts  of  an  incompetent  body. 
(Page  159.) 


16 


The  Government  of  Chile  ought  to  have  pro- 
cured, on  the  same  date  on  w^hich  it  initiated  its  ne- 
gotiations with  Iglesias — March  1883,  that  an  as- 
sembly composed  not  of  the  representatives  of  the 
occupied  territories  but  of  the  representatives  of  all 
the  Peruvian  people  should  pass  upon  that  Govern- 
ment and  upon  the  bases  which  it  had  agreed  upon; 
but  Chile  did  not  wish  to  follow  that  line  of  conduct. 
It  had  rejected  it  when  Mr.  Garcia  Calderon  clearly- 
proposed  it  and  did  not  put  it  into  practice  regard- 
ing Iglesias  because  it  did  not  wish,  in  any  form,  the 
unification  of  Peru  under  the  direction  of  an  as- 
sembly which  should  really  personify  the  national 
will.  It  preferred  to  deal  with  a  leader  subjected 
to  its  influence  and  was  satisfied  with  the  treaty 
wrested  by  force  which  only  a  diminutive  and  apoc- 
ryphal assembly  approved  afterwards  contrary  to 
the  national  sentiment. 


17 


Chapter  II. 

The  Cession  of  Tarapaca  was  the  consecration  of  a 
conquest. 

The  treaty  of  Ancon  is  considered  as  a  typical  ter- 
ritorial cession  treaty,  but  on  account  of  its  process 
and  its  spirit  it  ought  to  be  classified  as  a  consecra- 
tion of  conquest  treaty. 

The  second  article  of  the  treaty  says,  literally: 

"The  Republic  of  Peru  cedes  to  the  Republic 
of  Chile  perpetually  and  unconditionally  the 
territory  of  the  httoral  province  of  Tarapaca 
the  boundaries  of  which  are,  etc." 

It  has  been  sufficiently  proven  that  although  it  is 
true  that  Tarapaca  was  Chile's  war-objective,  it 
was  never  the  object  of  the  dispute  in  which  the 
struggle  originated.  Everyone  knows  that  the  sub- 
ject matter  of  the  dispute  was  the  Bolivian  coast. 

The  cession  of  territory  which  has  been  an  object 
of  the  dispute  which  produced  the  war  is  conceivable, 
but  the  incorporation  in  the  conqueror  of  territories 
foreign  to  the  struggle  and  which  did  not  even  ad- 
join those  of  the  victorious  country  can  never  be 
made  to  appear  honest.  The  case  of  Tarapaca  ap- 
pears as  the  typical  example  of  territorial  conquest. 

All  the  treatise  writers  concur  in  condemning  con- 
quest. Even  those  who  abide  by  the  criterion 
of  facts  and  who  belong  to  the  positivistic 
school  of  international  law  consider  territorial  an- 
nexations contrary  to  the  principles  of  absolute  jus- 
tice and  to  the  practical  ideal  of  the  preservation  of 
peace  itself.     Territorial  cession  is  admitted  only  in 

18 


case  of  extreme  necessity  ^lien_a_  country  has  no 
^ther  means  ofjobtainingjts  libexation  oxL-is-incapahLe 
of  paying  a  war  indemnity.. 

This  was  not  the  case  of  Peru  with  respect  to 
Tarapaca.  It  is  evident  that,  in  view  of  the  im- 
mense riches  which  Tarapaca  possessed,  Chile  could 
have  accepted  a  war  indemnity  with  occupation  as  a 
guaranty,  and  that  indemnity  could  have  reached 
the  highest  sum.  The  argument  with  which  Chile, 
through  the  mouths  of  its  statesmen,  at  the  time  of 
the  treaty,  and,  later,  through  those  of  its  defensors, 
has  wished  to  justify  the  cession  is,  therefore,  ground- 
less. 

Balmaceda  in  his  discussions  with  Trescott  in- 
sisted that  it  was  impossible  for  Peru  to  pay  war 
indemnity.  The  fabulous  wealth  which  Chile  has 
extracted  from  the  Peruvian  coast  has  behed  the 
affirmation  of  that  Chilean  notable.  ,  Tarapaca  has 
paid,  by  way  of  taxes  on  saltpetre  alone,  an  indem- 
nity greater  than  that  paid  by  France  to  Germany  as 
a  consequence  of  the  treaty  of  Frankfort.  Aside 
iFrom  that  consideration,  to  definitively  establish  that 
the  cession  of  Tarapaca  was  not  exacted  as  a  substi- 
tute for  a  war  indemnity  but  to  satisfy  purposes  of 
conquest  and  of  territorial  expansion,  it  will  suffice 
to  refer  to  the  session  of  the  Chilean  Chamber  of 
Deputies  in  which  all  the  Deputies  affirmed  the  right 
of  conquest  which,  according  to  them,  supported 
Chile  in  regard  to  the  regions  which  it  had  occupied. 
Now,  then,  if  the  cession  of  Tarapaca  cannot  be  pre- 
sented before  international  law  as  a  substitute  for  a 
supposed  impossible  war  indemnity,  it  is  evident  that 


19 


it  appears  to  the  eyes  of  the  internationalist  with  the 
characteristics  of  an  annexation  based  principally 
upon  imperialistic  purposes.     Phillipson  says: 

"It  is  now  held  universally  that  forcibly  to 
deprive  a  people  of  territory  without  good  and 
sufficient  cause  is  a  violation  of  right  and  justice. 
The  accepted  body  of  international  jurispru- 
dence does  not  cover  and  provide  for  all  possible 
international  relationships  and  every  species  of 
proceeding.  It  is  urged  that  other  considera- 
tions— for  example,  honor,  fairness,  equity — 
apply,  and  must  perforce  govern  the  conduct  of 
the  civilized  society  of  States.  These  princi- 
ples are  fundamental.  There  is  no  need  to 
consult  codes  and  conventions  to  find  them  ; 
they  are  implanted  in  the  consciousness  of  man- 
kind, and  can  never  be  eradicated." — Termina- 
tion of  War  ard  Treaties  of  Peace,  1916,  p.  29. 

s,     Fiore  says: 

"The  conquest  of  a  territory  cannot  be  in  it- 
self a  sufficient  reason  for  exacting  the  cession 
of  the  conquered  territory  when  the  right  of 
the  conqueror  does  not  exist.  The  conqueror 
can  impose  that  cession  when  it  be  justified  by 
evident  conditions  of  morality  or  by  the  general 
interest  of  insuring  peace." — Nouveau,  Droit 
Internationale  Pubhc,  2nd  Ed.,  Paris  1880, 
Par.  1696. 

The  same  writer  who  is  perhaps  the  authority  that 
has  best  expounded  the  point  relative  to  the  moraUty 
or  justification  of  territorial  cessions  has  summarized 
his  thought  in  the  following  rules: 

"Second :  That  the  stipulation  of  a  terri- 
torial cession  without  taking  into  account,  prin- 
cipally, the  historical  and  ethnographical  rela- 

20 


tions  and,  secondarily,  the  necessity  of  security 
and  of  defense,  must  be  considered  contrary  to 
honor,   loyalty   and   international   morality." — 
^^     Fiore,  Diritto  Internazionale,   1905,  p.  389. 

The  juridical  consciousness  of  the  world  has  al- 
ready  crystalized  regarding  this  matter,  Nowhere 
is  that  consciousness  clearer  than  on  the  American 
continent.  The  principal  countries  of  America  have 
always  manifested  themselves  opposed  to  conquest. 
The  principle  of  the  uti  possidetis  had  been  estab- 
lished among  the  hispanic-American  countries  to 
avoid  the  annexation  of  territories  by  force.  All 
boundary  questions  were  to  be  settled  in  accordance 
with  it.  These  delicate  litigations  thus  had  an  arbi- 
tral or  transactional  solution.  The  examples  of 
wars  in  America,  prior  to  that  of  the  Pacific,  show 
us  that  the  principle  of  conquest  was  excluded  from 
the  American  public  law.  When  the  war  of  1829 
between  Peru  and  Colombia  ended  the  two  countries 
limited  themselves  to  agreeing  upon  the  acceptance 
of  the  principle  of  the  uti  possidetis  for  the  fixation 
of  boundaries;  and  in  the  Paraguayan  war  the  win- 
ners respected  the  territorial  integrity  of  Paraguay 
formulating  the  principle  that  victory  gives  no  rights. 
The  condemnation  of  Chile's  purposes  of  conquest 
by  all  the  countries  of  America  was  not,  therefore,  in 
the  light  of  these  precedents,  surprising.  Owing  to 
the  Peruvian-Chilean  conflict,  Argentina  and  Brazil 
offered  their  mediation  on  the  exclusive  basis  of  the 
payment  of  the  expenses  caused  by  the  war  and  of 
the  indemnity  for  the  damages  caused  by  the  same. 
The  Congress  planned  by  Colombia  was  based  on  the 


21 


same  principles.  ^  The  United  States  were  even  more 
explicit.)  Minister  Hurlburt  said  that  the  United 
States  were  not  disposed  to  recognize  on  this  conti- 
nent the  European  concept  which  authorizes  territo- 
rial expansion  by  means  of  conquest.  The  bases  of 
Blaine's  instructions  to  Trescott  established  that  the 
annexation  of  Tarapaca  was  not  compatible  with 
justice;  that  the  negotiations  ought  to  be  opened 
without  the  annexation's  being  necessary  as  a  condi- 
tion precedent,  and,  finally,  that  the  United  States 
would  consider  the  imposition  of  an  extravagant  in- 
demnity which  should  make  the  cession  of  territory 
unavoidable  for  its  satisfaction  as  an  exigency  which 
was  not  justified  by  the  expense  which  the  war  had 
occasioned  to  date,  and  as  a  solution  which  threat- 
ened to  renew  again  the  difficulties  between  both 
countries. 

CjThose  reproaches  of  the  conquest  planned  by  Chile 
were  repeated  in  the  most  august  form  in  the  year 
_J.891)i  that  is,  seven  years  afterwards,  in  the  first 
Pan-American  conference  held  at  Washington, 
The  resolution  adopted  by  all  the  countries  except 
Chile  constituted  the  verdict  of  the  entire  continent 
regarding  the  crime  committed  in  1883,  and  estab- 
lished perfectly  the  incurable  vice  of  the  treaty  of 
Ancon.  >   That  resolution  said  : 

"First,  the  principle  of  conquest  shall  not  be 
recognized  as  admissible  under  American  public 
law  during  the  continuation  of  the  treaty  of 
arbitration.  Second,  the  cessions  of  territory 
made  during  the  continuation  of  this  treaty  of 
arbitration  shall  be  null  if  made  under  the 
threat  of  war  or  the  presence  of  armed  forces. 

22 


Any  nation  on  which  those  cessions  may  have 
been  imposed  may  petition  that  their  vahdity  be 
submitted  to  arbitration." 

The  only  thing  that  can  justify  a  territorial  an- 
nexation is  its  approval  by  the  inhabitants  of  the  ter- 
ritory which  it  concerns.  Phillipson  has  summar- 
ized as  follows  the  bases  of  the  principle  of  self- 
determination  : 

"It  is  argued,  too,  that  the  right  of  the 
stronger  ought  not  to  be  allowed  to  prevail, 
that  the  conditions  are  now  different  from  those 
existing  in  earlier  ages  when  such  a  right  was 
universally  exercised,  that  public  opinion  has 
changed,  that  the  general  democratic  movement 
is  to  be  taken  into  account,  that  popular  suffrage 
is  now  almost  everywhere  the  fount  of  political 
authority,  that  the  sovereignty  of  the  people 
is  now  the  governing  factor  in  the  political  and 
social  life  of  nearly  all  civilized  States.  Why 
— it  is  asked — should  the  people  of  a  given  ter- 
ritory be  handed  over  to  another  State,  deprived 
of  their  old  citizenship  (and  perhaps  of  their 
nationality,  if  they  are  not  allowed  to  exercise 
the  power  of  option),  and  of  all  their  old  asso- 
ciations, without  consulting  them  as  to  whether 
they  approve  of  the  change?" — Termination  of 
War  and  Treaties  of  Peace,  1916,  p.  282. 

,  Walter    Frank    Phillimore,    in    his    recent   work, 

"Three    Centuries    of    Treaties    of    Peace,"    con- 
firms anew  this  idea  in  the  following  words: 

"But  the  deterrent  penalty  should  not  take 
the  form  of  depriving  States  of  population  and 
territory  without  regard  to  the  wishes  of  the 
population  of  the  ceded  territory,  or  without 
due  consideration  of  geographical  limits. 

23 


"It  must  be  remembered  that  we  are  not,  as 
in  times  past,  dealing  with  monarchs  as  if  they 
were  proprietors  who  could  be  made  to  cede 
portions  of  their  estates.  The  days  of  Patri- 
monial States  are  past.  We  are  dealing  with 
peoples  and  nations.  They  must  suffer,  no 
doubt,  for  the  wrongdoing  of  their  Govern- 
ments ;  but  they  should  not  be  permanently 
severed  from  the  country  to  which  they  are  at- 
tached, nor  put  in  subjection  to  an  alien  rule 
merely  in  order  to  punish  their  former  country 
for  engaging  in  war." 

If  this  is  the  principle  which  Walter  Frank  Philli- 
more  invokes  as  applicable  even  to  the  very  countries 
responsible  for  the  war,  with  how  much  more  reason 
must  that  rule  be  invoked  in  the  case  of  a  country 
such  as  Peru  which  was  the  victim  of  the  Chilean 
aggression  prepared  since  many  years  back.  In  ac- 
cordance with  the  principles  of  international  law, 
territorial  dismemberment  cannot  be  accepted  even 
as  a  penalty:  even  less  can  it  be  justified  if  it  is  to 
fall  on  the  innocent  country. 

Since  the  time  of  Vattel,  the  will  of  the  inhabitants 
was  considered  as  of  principal  importance  in  the 
transference  of  territories.  That  author  maintained 
that  these  inhabitants  were  not  bound  to  accept  the 
cession  if  they  were  capable  of  resisting. 

In  spite  of  the  objections  which  some  treatise 
writers  oppose  to  the  ratification  of  the  territorial 
cession  by  the  vote  of  the  inhabitants,  the  ideas  in  this 
regard  have  been  becoming  firmer  day  by  day  to  the 
point  of  the  principle  of  self-determination's  being 
one  of  the  fundamental  bases  of  the  modern  public 


24 


law.  In  the  light  of  these  ideas,  we  adjudge  imper- 
fect the  plebiscites  which  were  simply  a  formality  to 
give  a  cession  an  honest  appearance,  and  we  condemn 
the  cases  in  which  those  annexations  have  been  ac- 
comphshed  even  without  a  false  plebiscite. 

No  one  has  condensed  better  than  Foulke  the  pres- 
ent state  of  the  international  science  in  this  respect. 
Let  us  hear  his  words : 

243.  Territory  was  transferred  by  the 
monarchs  of  Europe  voluntarily  or  by  conquest 
without  regard  to  the  wishes  or  convenience  of 
the  inhabitants  of  the  territory  in  question,  who 
were  regarded  as  so  many  chattels  to  be  handed 
around  as  suited  the  conveniences  of  their  royal 
masters.  However,  the  growth  of  democracies 
and  the  increased  potency  of  the  voice  of  the 
people  in  state  affairs  have  formed  a  basis  for 
the  idea  that  the  inhabitants  of  the  territory 
should  be  consulted  before  their  territory  is 
transferred  from  one  state  to  the  other ;  that  it 
is  contrary  to  humanity  and  the  individual  in- 
terests of  man  to  forcibly  tear  a  community 
from  the  political  power  of  one  state  and  hand 
it  over  to  another  without  giving  the  inhabitants 
any  say  in  the  matter. — International  Law, — 
Foulke,  Volume  1,  1920,  p.  318. 

In  the  case  of  Tarapaca,  the  cession  took  place  not 
only  without  consultation  of  the  will  of  its  inhabi- 
tants but  against  their  express  will.  Immediately 
following  the  making  of  the  treaty  the  natives  of 
Tarapac^  addressed  to  the  civilized  world  the  most 
solemn  protest  affirming  their  right  of  self-determina- 
tion.    That  protest  says: 

"Not  to  recognize  nor  to  accept  as  valid  any 
treaty  which  Peru  may  make  in  which  the  ces- 

25 


sion  of  our  department  to  Chile  or  to  any  other 
State  be  stipulated,  which  ever  be  the  Peruvian 
Government  that  make  it  and  the  source  whence 
its  authority  emanate. 

"To  remain  faithful  to  the  Peruvian  laws; 
to  respect  the  dispositions  of  Peru's  recognized 
authorities  and  to  follow  the  common  lot  which 
is  reserved  to  Peru  in  this  or  any  other  emer- 
gency as  long  as  the  principle  of  territorial  in- 
tegrity established  in  the  State  constitution  be 
not  tampered  with." 

They  ended  their  protest  reserving  the  right  of 
defending  their  nationalit}\  There  is  no  room  for 
making  the  argument  that  the  impossibility  in  which 
the  natives  of  Tarapaca  found  themselves  of  resist- 
ing by  force  the  Chilean  authorities  constituted  in 
that  territory  could  signify  a  passive  assent  to  the 
annexation.  Answering  Bluntschli,  Nys  has  said 
very  well,  in  his  "Droit  International,"  1912,  p.  22: 

"The  obedience  to  the  new  government  can- 
not be  interpreted  as  constituting  assent  to  the 
established  order  of  things.  It  has  its  explana- 
tion in  the  transference  of  domination ;  it  is 
obligatory  and  does  not  imply  approval  nor  dis- 
approval by  the  subjects." 

In  the  case  of  Tarapaca,  the  administration  and 
exploitation  of  those  territories  by  Chile  always  gave 
rise  to  the  protest  of  the  natives  to  the  point  that  the 
Chilean  Government  decided  to  take  violent  meas- 
ures against  them,  persecuting  them  individually,  or 
expelling  them  en  masse.  In  recent  times,  those  pro- 
tests took  on  an  explicit  character.  They  have  been 
embodied  principally  in  the  cablegram  which  the 
natives  of  Tarapaca  addressed  to  President  Wilson 

26 


^ 


v^ 


in  February  1919,  and  in  the  Memorial  signed  on 
the  6th  of  April  this  year,  addressed  by  them  to 
President  Harding. 

The  protest  of  1884  and  the  last  mentioned  docu- 
ments have  an  indissoluble  logical  correspondence. 
They  are  the  obvious  proof  that  in  spite  of  the  lapse 
of  the  forty  years  since  the  conquest  the  latter  has 
not  been  able  to  drown  nor  to  extinguish  the  senti- 
ment of  nationality. 

International  law  records  interesting  examples  of 
territorial  cessions  in  the  Nineteenth  Century.  A 
slight  parallel  of  these  cessions  with  that  embodied 
in  the  treaty  of  Ancon  will  serve  to  better  set  off  the 
marks  of  immorality  and  of  injustice  which  charac- 
terize the  latter. 

The  cessions  made  by  the  treaty  of  Paris  in  the 
year  1815  at  least  had  the  pretext  of  the  scurity  of 
the  frontiers  which  were  believed  to  be  menaced  by 
the  French  imperialism. 

The  territorial  transformations  made  by  the  treaty 
of  Paris  of  1856,  far  from  involving  a  conquest,  re- 
stored a  prior  condition  and  consecrated  the  prin- 
ciple of  nationality  in  the  principalities  of  the 
Danube, 

The  treaty  of  Vienna  of  1866,  by  which  the 
Emperor  of  Austria  accepted  the  union  of  the  Lom- 
bardo- Venetian  Kingdom  to  Italy  had  the  same 
character. 

The  treaty  of  Frankfort  of  1871  gives  the  ex- 
ample of  conquest  or  of  territorial  annexation  by 
force  which  most  nearly  approaches  that  of  the  treaty 
of  Ancon.     Some  essential  differences  appear,  how- 

27 


ever,  which  present,  in  a  graver  aspect,  the  violation 
of  international  law  which  was  committed  against 
Peru.  It  has  been  recalled  with  exactness  that  Al- 
sace and  Lorraine  belonged  to  the  German  Empire 
and  that  in  any  case  they  were  territories  adjoining 
that  empire. 

Pursuant  to  a  resolution  of  the  Congress  of  Berlin 
Austria-Hungary  occupied  Bosnia  and  Herzegovina. 
In  the  year  1908  the  dual  monarchy  annexed  those 
provinces.  That  act  has  been  one  of  the  antecedents 
of  the  last  war.  Bosnia  and  Herzegovina  are  today 
parts  of  the  Jugo-Slavian  nation. 

By  the  treaty  of  Shimonoseki  of  1895  some  Chi- 
nese territories  were  ceded  to  Japan  forever  and  with 
complete  sovereignty.  No  one  ignores  that  those 
territorial  cessions  have  given  rise  to  the  problems 
of  the  Far  East  concerning  which  the  Disarmament 
Conference  has  established  a  truce  and  which,  never- 
theless, contain  germs  of  discord  for  the  future  of 
humanity. 

The  treaty  of  Constantinople  of  1897  did  nothing 
more  than  to  restore  to  Greece  the  village  of  Kouchu- 
fiani  which  formerly  belonged  to  it. 

The  treaty  of  Paris  of  1898  between  the  United 
States  and  Spain  did  not  result  in  the  annexation  of 
the  Island  of  Cuba  to  the  United  States  but,  on  the 
contrary,  in  the  freedom  of  said  island  and  its  en- 
trance into  the  concert  of  the  hispanic-American 
nations.  The  United  States  paid  twenty  million 
dollars  for  the  Philippine  Islands,  and  it  is  under- 
stood that  as  soon  as  circumstances  may  permit  it, 
full  autonomy  will  be  granted  to  said  Islands.     So 

28 


the  only  territorial  annexation  worthy  of  being  men- 
tioned as  regards  said  treaty  would  be  that  of  Porto 
Rico  destined  to  be  sooner  or  later  a  free  State  of 
the  American  Union. 

The  treaty  of  Portsmouth  of  1905  between  Rus- 
sia and  Japan  resulted  in  the  cession  to  the  latter 
country  of  the  southern  part  of  the  Sakhalin  Island 
and  some  neighboring  islands. 

The  treaties  of  London,  Bucharest  and  of  Con- 
stantinople of  1913  consecrated  territorial  transfer- 
ences all  tending  to  integrate  the  nationahties  which 
were  before  subject  to  the  Turkish  Empire. 

It  appears  from  this  slight  account  that  the  ces- 
sions of  territories  resulting  from  war  have  been, 
in  the  majority  of  cases,  in  favor  of  the  principle  of 
nationalities.  Only  the  annexation  of  Alsace  and 
Lorraine  and  the  annexations  imposed  on  China  and 
Russia  and  that  of  Porto  Rico  have  contradicted  this 
rule. 

None  of  these  cessions  has  had  for  the  dismem- 
bered countries  the  importance  that  Tarapaca  had 
for  Peru.  The  territories  ceded  in  the  most  anala- 
gous  precedents  were  not  essential  parts  of  the  eco- 
nomic and  political  organism  to  which  they  belonged, 
excepting  Alsace  and  Lorraine,  which  have  been  re- 
stored as  a  consequence  of  the  last  European  war. 

It  must  be  borne  in  mind,  in  appreciating  what 
the  cession  of  Tarapaca  meant  for  Peru,  that  Peru's 
principal  source  of  resources  was  the  saltpetre  de- 
posits of  Tarapaca,  its  coast  being  arid,  the  exploita- 
tion of  the  sierra  being  difficult  and  the  montana 
almost  inaccessible.     Peru  needed  enormous  capital 

29 


to  irrigate  its  coast,  to  dominate  its  uneven  territory 
by  means  of  railroads,  to  initiate  the  exploitation  of 
its  mines  and  to  unite  the  forest  region  to  the  popu- 
lated centres.  The  riches  of  Tarapaca  constituted 
the  guaranty  of  its  foreign  debt  which  was  consid- 
erable, and  the  capital  indispensable  for  carrying 
out  those  gigantic  works  without  which  civilization 
was  impossible  in  the  face  of  the  immense  obstacles 
caused  by  the  geographical  factors.  So  the  loss  of 
Tarapaca  did  not,  therefore,  involve  only  a  terri- 
torial mutilation  and  a  diminution  in  the  population; 
it  was  a  death-blow  given  to  the  economic  life  and 
to  the  development  of  the  civilization  of  Peru.  We 
can,  therefore,  state,  without  circumlocution,  that 
history  does  not  record  a  case  of  territorial  annexa- 
tion of  more  serious  or  graver  consequences  for  the 
vanquished  country. 

Some  Chilean  writers  have  made  special  mention 
of  the  annexation  of  New  Mexico,  California  and 
Arizona  among  the  cases  of  conquest  that  could  be 
cited  as  precedents  for  the  annexation  of  Tarapaca. 
It  is  true  that  the  treaty  signed  in  Guadalupe  Hi- 
dalgo in  1842  consecrated  the  incorporation  in  the 
American  Union  of  territories  unquestionably  recog- 
nized as  Mexican,  and  that  the  Government  of  the 
United  States  paid  for  them  the  insignificant  sum  of 
fifteen  million  dollars.  The  historians  of  the  Great 
Republic  agree  that  the  war  with  Mexico  which  that 
treaty  liquidated  was  a  war  of  aggression  and  they 
agree  on  the  character  of  conquest  which  said  ces- 
sions had.  It  is  not,  therefore,  possible  to  invoke,  in 
accordance  with  the  moral  criterion  of  those  writers, 

30 


the  precedent  from  the  point  of  view  of  international 
justice.  Things  will  have  to  be  judged  from  the 
point  of  view  of  results.  It  is  true  that  the  immense 
and  rich  territories  of  Arizona,  California  and  New 
Mexico  were  taken  from  the  Mexican  Republic  by 
force,  but  it  is  no  less  true  that  those  territories  did 
not  signify  for  the  life  of  Mexico,  at  that  historical 
moment,  what  Tarapaca  represented  for  the  life  of 
Peru.  The  conquest  which  carried  the  boundaries 
of  the  American  Union  to  the  Rio  Bravo  was  the 
center  where  a  new  civilization  developed  and  where 
the  excess  emigration  from  Europe  converged  result- 
ing in  the  formation  of  new  human  groups.  In  the 
case  of  Tarapaca,  things  have  happened  in  a  very 
different  way.  Tarapaca  has  not  served  as  the 
convergence  center  of  human  masses  which  needed 
the  benefit  of  free  land.  It  has  been  only  the  basis 
of  the  most  sordid  capitalistic  exploitation  or  the 
source  of  fiscal  wealth  for  the  Government  of  Chile 
which  it  has  utilized  to  militarize  the  country,  pur- 
suing an  imperialistic  policy,  to  start  in  America  the 
naval  armaments  competition  and  the  policy  of  hege- 
mony. The  settlers  and  pioneers  who  have  come 
from  all  parts  of  the  world  have  benefited  by  the 
annexation  of  New  Mexico,  California  and  Arizona; 
only  the  oligarchical  and  militaristic  caste  which 
directs  the  destinies  of  Chile  has  benefited  by  the 
annexation  of  Tarapaca. 


31 


Chapter  III. 
The  War  Indemnity  and  the  Cession  of  Tarapaca. 

Although  the  treatise  writers  deny  to  the  vic- 
torious country  the  right  of  conquest,  they  grant  it 
the  right  of  collecting  an  indemnity  for  the  expenses 
incurred. 

Phillipson  says  in  his  so  often  cited  work: 

"Nearly  all  jurists,  both  the  earher  and  the 
modern,  agree  that  a  victorious  State  is  justi- 
fied in  demanding  a  pecuniary  indemnity  as  a 
means  of  making  good  the  losses  incurred  dur- 
ing the  war.  But  the  mode  of  calculating  the 
amount  presents  the  greatest  difficulty,  for  not 
all  the  losses  incurred  and  damage  inflicted  can 
be  made  good.  It  may  be  possible  to  arrive  at 
a  fair  numerical  estimation  of  the  expense  of 
the  material  losses,  e.  g.,  territory  devastated, 
property  destroyed,  cost  of  mobiUzation  and 
maintenance  of  the  armed  forces;  it  may  be 
possible  even  to  calculate  the  amount  necessary 
wherewith  to  grant  pensions  or  aid  to  the 
wounded,  and  to  the  widows  and  orphans  of 
those  who  have  fallen.  But  it  is  not  possible 
to  estimate  in  figures  the  sufferings,  physical, 
moral  and  mental,  of  combatants  and  non-com- 
batants alike;  and  also  the  indirect  damage  in- 
flicted on  the  general  fortune  of  the  State,  on 
its  social,  industrial,  and  commercial  organiza- 
tion. It  is  thought,  therefore,  that  as  war  is  a 
method  of  settling  international  conflicts,  the 
victorious  part}'  is  entitled  to  be  reimbursed  for 
the  direct  losses  and  expenses  caused  by  the 
war — which  the  victor  assumes  to  have  been 
undertaken  by  him  for  the  sake  of  seeking  just 
redress;  but  that  the  exaction  of  damages  for 
indirect,  incalculable  losses  is  not  justified,  in- 

32 


asmuch  as  it  would  entail  an  arbitrary  calcula- 
tion and  might  well  become  a  means  of  enrich- 
ing the  victor  and  impoverishing  the  van- 
quished. As  MM.  Funck-Brentano  and  Sorel 
remark:  'Outside  of  these  reparations  very 
strictly  determined,  the  war  indemnity  is  always 
the  result  of  an  arbitrary  valuation,  and  always 
has,  more  or  less,  the  object  of  enriching  the 
victorious  and  of  impoverishing  the  vanquished.' 
In  the  proper  sense  of  the  term,  then  indemnity 
is  neither  ransom  nor  a  penalty  for  an  offense; 
it  is  a  pecuniary  reparation  for  actual  and  spe- 
cific damages  and  extraordinary  expenses 
brought  about  by  the  prosecution  of  hostilities." 
— Termination  of  War  and  Treaties  of  Peace, 
p.  269. 

In  accordance  with  these  principles  all  the  in- 
demnity claims  which  make  out  of  war  a  simple  busi- 
ness are  immoral  and  unjust.  Calvo  referring  to 
the  enormous  sum  demanded  by  Prussia  of  France 
after  the  war  of  1870  said  the  following: 

"In  the  face  of  these  enormities  there  is 
room  for  asking  one's  self  where  this  ever  in- 
creasing progression  will  stop.  One  conceives 
to  a  certain  extent  that  a  victorious  enemy  may 
pretend  to  cause  itself  to  be  indemnified  by  its 
vanquished  adversary  for  the  expenses  which 
war  has  entailed,  especially  if  it  has  not  pro- 
voked the  war ;  but  it  is  far  removed  from  that 
to  make  exigencies  out  of  all  proportion  with 
the  most  reasonable  calculations,  exigencies 
rather  adequate  to  ruin  the  country  to  which 
they  are  addressed  and  to  prolong  the  evils  of 
war  after  the  actual  cessation  of  hostilities. 
Isn't  there  room  here  for  a  moderating  and  con- 
ciliatory intervention  ?  Why  should  not  this  li- 
quidation of  accounts  be  submitted  to  a  disin- 

33 


terested,  equitable  and  impartial  arbitration? — 
City  by  Phillipson  in  "Termination  of  War 
and  Treaties  of  Peace,"  at  p.  272. 

If  Calvo  emitted  these  opinions  concerning  the 
indemnity  exacted  of  France,  what  would  the  illus- 
trious Argentine  author  have  said  if  he  had  known 
the  economic  result  of  the  war  for  Chile  as  a  con- 
sequence of  the  annexation  of  Tarapaca! 

In  the  peace  negotiations,  Peru  repeatedly  pro- 
posed that  the  indemnity  which  it  would  pay  as  the 
vanquished  should  be  submitted  to  arbitration. 
Chile  rejected  this  proposal  and  exacted  the  terri- 
torial cession  as  indemnity ;  at  least  that  was  what  the 
diplomatic  documents  said.  It  used  a  different 
language  within  the  country.  Its  public  men  con- 
fessed, as  we  have  already  recalled,  that  it  was  the 
case  of  a  conquest. 

In  accordance  with  the  Chilean  official  documents 
the  war  expenses  amounted  to  seventeen  miUion 
pesos.  Chile  has  confessed  that  it  has  received  as 
taxes  on  saltpetre  alone  the  sum  of  one  hundred  and 
fifty  million  pounds. 

According  to  Dr.  Maurtua's  calculations  the 
amount  paid  by  Peru  up  to  the  year  1900  reached 
two  thousand  three  hundred  and  fifty  million  pesos, 
and  what  Bolivia  has  paid  may  be  estimated  at  six 
hundred  and  fifty  million.  Comparing  this  indem- 
nity with  that  paid  by  France  it  follows  that  each 
inhabitant  of  France  contributed  one  hundred  and 
thirty  francs  to  the  indemnity  paid  to  Germany 
whereas  in  Peru  the  proportion  is  fourteen  hundred 
and  eighty  francs  per  capita.     Dr.  Maurtua  adds: 

34 


"In  France  the  indemnity  of  five  billion 
francs  represented  less  than  the  total  amount  of 
public  expenses  during  two  years;  in  Peru, 
where  a  year's  budget  amounts  to  thirty  million 
francs,  it  represents  the  expenses  corresponding 
to  one  hundred  and  forty  years." 

The  Chilean  newspaper  "El  Heraldo"  has  cal- 
culated the  indemnity  as  follows: 

"Peru  has  paid  Chile  an  indemnity  several 
times  greater  than  that  paid  by  France  to  Ger- 
many. The  saltpetre  deposits  of  Tarapaca  have 
yielded  to  it  in  taxes  upwards  of  thirty  million 
sterling  pounds  or  one  hundred  and  fifty  mil- 
lion dollars.  Accepting  the  most  moderate  cal- 
culation made  of  the  duration  of  the  saltpetre 
deposits  in  their  richest  and  most  easily  exploit- 
able part  which  is  fifty  years,  a  surprising  figure 
is  arrived  at.  The  afore-mentioned  annual 
revenue  is  now  in  the  neighborhood  of  thirty- 
eight  million.  Multiply  this  sum  by  the  fifty 
years  calculated  and  the  colossal  sum  of  nine- 
teen hundred  million  pesos  results  which  added 
to  those  already  received  exceed  two  billion 
pesos,  ten  billion  francs  or  twice  what  Germany 
exacted  of  France  to  the  world's  astonishment." 
— Documentos  Esenciales  del  Debate  Peruano- 
Chileno-D.  47. 

The  foregoing  calculations  have  been  made  con- 
sidering only  the  direct  benefit  of  the  fiscal  revenue 
without  taking  into  account  the  indirect  benefit  of 
the  exploitation  of  that  immense  riches  without 
which  Chile  could  not  have  acquired  the  military 
elements  which  present  it  as  one  of  the  principal 
powers  of  Hispanic-America. 

Everything  is  extraordinary  and  abnormal  in  this 
interesting  historical  case.     The  causes  of  the  war, 

35 


the  prosecution  of  the  same,  the  conditions  of  peace 
and  the  indemnity.  The  professionals  of  diplomatic 
history  have  to  make  a  separate  chapter  out  of  the 
precedents  of  the  Peruvian-Chilean  struggle.  The 
originality  of  the  case  as  regards  Chile  consists  in 
that  it  has  been  entirely  contrary  to  what  interna- 
tional law  established.  It  is  the  most  interesting 
case  not  only  due  to  the  extent  or  to  the  number 
of  the  violations  committed  against  international 
law  but  due  to  its  intensity  and  transcendence.  The 
war  changed  entirely  the  conditions  of  the  two  coun- 
tries. Peru  remained  impoverished  and  annihilated 
and  Chile  suddenly  reached  the  highest  degree  of 
opulence. 


36 


Chapter  IV. 
Tanapaca  Passes  Without  Debts  to  Chile. 

Peru's  foreign  debt  which,  in  round  numbers, 
amounted  to  forty  million  pounds,  was  secured  by 
the  guano  and,  principally,  by  the  saltpetre  from 
the  time  when  guano  began  to  diminish.  This  se- 
curity existed  not  only  because  it  is  a  general  rule 
that  the  debtor's  property  and  fount  of  resources  are 
subject  to  its  debts  but  because  the  guano  and  the 
saltpetre  were  expressly  subjected  to  the  payment  of 
the  foreign  loans  by  acts  of  the  Government  of  Peru. 

The  mortgage  of  the  Peruvian  saltpetre  and 
guano  to  the  foreign  creditors  was  clearly  estab- 
lished prior  to  the  outbreak  of  the  war. 

This  fact  was  perfectly  well  known  to  Chile. 
Thus  is  it  explained  that  the  Minister  of  Foreign 
Affairs  should  have  solemnly  declared  in  1881,  in 
the  report  of  that  year  at  page  86,. that  the  cession, 
(he  refers  to  that  of  Tarapaca)  involved,  for  the  vic- 
torious country,  the  acknowledgment  of  all  the  mort- 
xgage^encjmibrances^onstitutejiJayU^  of 

_Peru- 

But  in  spite  of  the  emphatical  nature  of  this  obli- 
gation which,  moreover,  did  not  involve  anything 
but  the  application  of  an  elementary  rule  of  inter- 
national law,  the  Government  of  Chile,  when  the 
negotiation  of  peace  with  President  Garcia  Calderon 
was  taken  up,  completely  refused  to  stipulate  the 
aforesaid  acknowledgment  in  the  treaty. 

General  Iglesias  in  his  desire  of  having  peace 
without  sacrificing  Tacna  and  Arica  decided  to  ac- 

37 


cede  to  the  condition  which  Chile  exacted  as  most 
important,  namely,  the  cession  of  Tarapaca  free  of 
encumbrances.!^  It  was  then  agreed  that  Chile  would 
assume  only  the  responsibility  or  obligation  stated  in 
the  decree  of  February  9,  1882,  concerning  the  sale 
of  a  million  tons  of  guano  out  of  the  proceeds  of 
which  Chile  was  to  offer  fifty  per  cent  only  to  the 
creditors  of  Peru. 

Article  5  of  the  treaty  established  the  following 
limitation  on  the  rights  of  Peru: 

"If  new  guano  beds  or  deposits  should  be  dis- 
covered in  the  territories  which  remain  under 
Peruvian  sovereignty,  in  order  to  prevent  that 
the  Governments  of  Chile  and  Peru  compete 
with  each  other  in  the  sale  of  that  substance,  the 
proportion  and  conditions  to  which  each  one  of 
them  must  submit  in  the  sale  of  that  fertilizer 
shall  be  previously  decided  by  both  govern- 
ments." 

Articles  9  and  10  of  the  treaty  established  besides 
that  the  Lobos  Islands  should  continue  to  be  ad- 
ministered by  the  Government  of  Chile  until  the 
termination  of  the  exploitation  of  the  million  tons 
to  which  the  fourth  article  referred,  Chile  binding 
itself  to  dehver  to  Peru  the  fifty  per  cent  which 
corresponded  to  its  share  in  the  guano  of  those 
islands. 

Article  6  established  the  monstrous  rule  that  the 
creditors  of  Peru  ought  to  submit,  in  the  proof  of 
their  claims  and  other  proceedings,  to  the  rules  fixed 
in  the  supreme  decree  of  February  9,  1882. 

To  sum  up,  Chile  appropriated  fifty  per  cent  of 
the  Peruvian  guano  and  assumed  the  right  of  sub- 

38 


jecting  the  Peruvian  creditors  to  the  rules  estab- 
lished by  itself  and,  finally,  limited  Peru's  rights  to 
exploit  that  riches  in  the  future. 

It  was  well  known  at  that  time  that  the  guano 
could  not  be  a  considerable  source  of  revenue  and 
that,  consequently,  those  provisions  as  to  guano  which 
involved  such  a  monstrous  restriction  on  Peru's  sov- 
ereignty and  an  unjustified  subjection  of  the  latter's 
creditors  to  Chile's  prescriptions  would  have  no 
very  considerable  importance. 

The  saltpetre  had  replaced  guano  as  a  fount  of 
fiscal  resources.  As  to  this  product,  the  treaty  of 
Ancon  contained  the  following  stipulation  which 
we  copy  literally : 

"Article  8.  Outside  of  the  declarations  con- 
tained in  the  preceding  articles  and  of  the  obli- 
gations which  the  Government  of  Chile  has  ac- 
cepted in  the  supreme  decree  of  March  28,  1882, 
which  regulated  the  saltpetre  property  of  Tara- 
paca,  the  said  Government  of  Chile  does  not 
recognize  credits  of  any  kind  which  may  affect 
the  new  territories  which  it  acquires  by  the 
present  treaty  whatever  be  their  nature  and 
source." 

The  simple  comparison  of  the  declarations  which 
Chile  made  in  the  year  1881  concerning  the  recog- 
nition of  all  the  mortgage  incumbrances  constituted 
by  the  Government  of  Peru  with  those  of  Article 
8  in  which  it  is  stated  that  Chile  does  not  recognize 
credits  of  any  kind  affecting  the  new  territories 
whatever  be  their  nature  and  source,  suffices  to  un- 
derstand the  contradiction  that  Chile  incurred,  vio- 


39 


lating  its  pledged  word  and  breaking  the  incontra- 
vertible  rules  of  international  law. 

Let  us  remember  the  principles  of  international 
law  applicable  to  this  case.  All  the  authors  accept 
the  rule  "Res  transit  cum  suo  onere."  Phillipson 
says,  in  his  aforementioned  work,  at  page  322,  that 
the  application  of  this  rule  has  been  found  conve- 
nient in  practice  and  recommends  itself  to  the  ju- 
ridical consciousness  of  humanity. 

Ceded  territories  are  subject  to  public  debts  of 
both  local  and  general  character. 

No  one  has  established  the  rules  on  this  point  bet- 
ter than  Merignac.     They  are  the  following: 

"The  annexing  State  must  pay:  First,  the 
debts  which  have  been  contracted  exclusively  in 
the  interest  of  the  annexed  province  as  for  in- 
stance, all  the  expenses  of  local  interest.  Sec- 
ond, the  mortgage  debts  secured  by  real  prop- 
erty in  the  annexed  province.  In  this  case  the 
real  right  of  mortgage  permits  the  pursuit  of 
the  property  subject  to  the  mortgage,  as  among 
private  parties,  whosoever's  hands  it  be  in. 
Third,  the  civil  and  military  or  retirement  pen- 
sions to  those  who  have  accepted  the  annexing 
country's  nationality.  Fourth,  the  particular 
credits  resulting  from  the  expenses  of  public 
interest  made  in  the  annexed  provinces." — 
Traite  de  Droit  International,  1907,  p.  496. 

In  view  of  these  principles,  what  happened  after 
the  approval  of  the  treaty  of  Ancon  by  the  apocry- 
phal assembly  of  1884  was  logical.  The  representa- 
tives of  all  the  powers  the  subjects  of  which  were 
creditors  of  Peru  presented  their  protest  against  the 

40 


treaty  in  the  most  energetical  manner.  It  was  sur- 
prising that  those  protests  were  not  followed  by  the 
pursuit  of  the  mortgaged  thing  which  Chile  held, 
which  pursuit  international  law  recognized  in  ac- 
cordance with  the  second  rule  which  we  have 
transcribed.  In  any  event,  the  fact  of  these  protests 
and  the  terms  in  which  they  were  conceived  affirm 
our  criterion  concerning  the  monstrosity  embodied 
in  the  eighth  stipulation  of  the  treaty  of  Ancon. 

Chile  was  lucky  enough  to  deviate  the  action  to 
which  the  creditors  of  Peru  were  so  clearly  entitled. 
This  country,  after  suffering  the  horrors  of  a  war 
which  in  its  later  stages  had  been  prolonged  to  avoid 
a  new  territorial  mutilation  and  to  secure  the  sub- 
sistence of  the  guaranty  in  favor  of  the  creditors,  had 
to  assume,  being  exhausted  and  its  entire  economic 
life  almost  destroyed,  the  overwhelming  weight  of 
its  foreign  debt. 

Years  later,  the  Government  of  Peru,  in  order  to 
honor  the  obligations  which  its  debts  involved,  found 
it  necessary  to  deliver  its  whole  railroad  net  and  the 
means  of  communication  with  Bolivia  on  Lake  Titi- 
caca  to  the  Peruvian  Corporation.  Chile  limited 
itself  to  giving  to  the  Peruvian  creditors  fifty  per  cent 
of  the  guano  and  afterwards  to  recognize  in  their 
favor  eighty  per  cent  of  the  other  half  which  it  had 
reserved  to  itself.  The  war  meant  for  Peru,  in  its 
liquidation,  not  only  the  loss  of  territory  and  of  the 
only  source  of  fiscal  wealth  but  the  delivery  of  its 
means  of  communication  to  a  foreign  company  with 
all  its  inconveniences  from  the  economic  point  of 
view  and  with  its  lamentable  consequences  against 
the  national  sovereignty. 

41 


Chapter  V, 

Chile's  Purpose  of  Not  Establishing  Definitive  Peace 
on  Opening  a  New  Problem. 

In  spite  of  the  unprecedented  harshness  of  the 
treaty  which  Chile  imposed,  the  treaty  would  have 
had  the  advantage  of  establishing  peace  if  it  had  liqui- 
dated all  the  problems  of  the  war.  But  the  Gov- 
ernment of  Chile  was  not  satisfied  with  wresting 
from  Peru  its  riches,  mutilating  its  territory,  sub- 
duing part  of  its  population,  causing  it  the  loss  of  its 
railroad  net,  but  wished  to  throw  on  it  the  anxieties 
of  a  new  problem  by  leaving  a  question  open.  Aldu- 
nate,  quoted  by  Bulnes,  says: 

"It  is  very  notorious  that  from  the  time  of 
Pierola's  fall  the  different  leaders  who  have 
succeeded  each  other  in  the  Government  of 
Peru,  representing  the  spirit  of  resistance  to 
peace,  have  manifested  themselves  disposed  to 
sign  it  provided  that  Chile  should  limit  its 
exigencies  to  the  cession  of  the  province  of  Tara- 
paca  up  to  Camarones.  So  that  the  most  des- 
perate and  most  disastrous  period  which  Peru 
has  sustained  against  the  Chilean  armies  of 
occupation  is  precisely  that  during  which  all  the 
causes  of  our  conflicts  were  limited  to  the  van- 
quished country's  resistance  to  ceding  to  Chile 
the  territories  of  Tacna  and  Arica." — Bulnes, 
"La  Soberania  de  Tacna  y  Arica."  Extractos  del 
Libro  de  Bulnes,  p.  55. 

After  this  obvious  confession,  Peru  having  con- 
sented, as  we  have  stated  in  the  next  preceding 
article,  to  permit  that  Tarapaca  should  pass  to  Chile 
without  debts  and  without  mortgages,  it  is  aston- 

42 


ishing  to  note  Chile's  exigency  of  continuing  to  oc- 
cupy the  Peruvian  territories  and  of  availing  itself 
of  them  as  a  source  of  a  second  pecuniary  indemnity 
or  as  a  means  of  hitching  Bolivia  to  Chile's  wagon 
or,  finally,  as  the  instrument  of  a  new  territorial  con- 
quest. 

Within  the  Chilean  point  of  view  itself,  Chile 
ought  to  have  been  satisfied  with  the  unencumbered 
riches  of  Tarapaca  and,  in  the  worst  of  cases,  with 
the  occupation  of  Tacna  and  Arica,  without  exacting 
the  ransom  of  the  ten  million  and  without  imposing 
the  plebiscitary  procedure  which,  from  the  first 
moment,  it  prepared  itself  to  employ  as  a  means  of 
aggravating  the  condition  of  the  vanquished. 

Chile  did  not  proceed  unconsciously  in  leaving  a 
question  open  in  the  treaty  of  peace. 

At  the  moment  when  the  treaty  was  signed,  the 
provinces  of  Tacna  and  Arica  did  not  represent  an 
immediate  and  direct  interest  for  Chilean  sover- 
eignty. The  negotiator  of  the  treaty,  Mr.  Novoa, 
had  the  thought  that  those  provinces  should  return 
to  Peru.  He  gave  it  to  understand  in  his  letter  to 
Mr.  Castro  Saldivar,  and  he  affirmed  it  in  a  cate- 
gorical manner  to  Mr.  Larrabure  y  Unanue,  First 
Assistant  Secretary  of  State  at  the  time  of  making 
of  the  treaty.  He  also  so  stated  to  Balmaceda,  in 
March,  1882.  The  following  are  Mr.  Novoa's 
words: 

"I  prefer  that  they  pay  us  the  twenty  million 
and  take  that  territory  with  Arica  unfortified  to 
having  necessity  draw  us  into  keeping  the  port 
and  Tacna." — Bulnes,  "La  Soberania  de  Tacna 
y  Arica."    Extractos  del  Libro  de  Bulnes,  p.  15. 

43 


Mr.  Novoa  saw  in  Tacna  and  Arica  the  means  of 
securing  for  Chile,  if  not  the  twenty  milhon  of  which 
he  spoke  in  his  letter  to  Balmaceda,  the  ten  million 
which  the  treaty  established.  This  thought  was  also 
that  of  Mr.  Aldunate  who  considered  the  formula 
of  the  plebiscite  as  a  means  of  securing  an  indemnity 
without  running  into  the  objection  which  the  Amer- 
ican Chancellery  had  made  to  the  stipulation  of  a 
ransom  for  Tacna  and  Arica  which  would  be  adding 
a  pecuniary  indemnity  to  the  territorial  indemnity 
of  Tarapaca.  But  the  thought  of  Mr.  Santa  Maria, 
the  President  of  Chile,  was  very  different.  It  is  by 
it  that  the  opprobious  character  of  the  treaty  must 
be  judged.  Mr.  Santa  Maria  thought  of  creating 
an  undefined  situation  and  of  postponing  the  solution 
of  the  problem  of  Tacna  and  Arica  until  the  moment 
which  should  be  most  favorable  to  Chile. 

For  that  reason,  the  protocol  regulating  the  ple- 
biscite was  not  incorporated  in  the  pact,  a  protocol 
which,  had  it  been  made,  would  have  resulted, 
through  its  fulfillment  within  ten  years,  in  the  re- 
incorporation of  Tacna  and  Arica  in  Peru. 

The  guilty  Chilean  intention  in  not  subscribing 
the  protocol  immediately  is  evident.  The  third 
article  of  the  treaty  said : 

"A  special  protocol  which  vnll  be  considered 
as  an  integrating  part  of  this  treaty  will  estab- 
lish the  form  in  which  the  plebiscite  must  take 
place,  and  the  terms  and  periods  within  which 
the  ten  million  must  be  paid  by  the  country  that 
remain  the  owner  of  Tacna  and  Arica." 

The  said  protocol  ought  to  have  been  entered  into 
immediately  since  it  was  an  integrating  part  of  the 

44 


treaty.  Not  to  enter  into  it  was  to  begin  to  violate 
the  treaty  itself  and  to  commit  an  offense  against 
its  very  integrity. 

Why  was  not  that  protocol  entered  into?  The 
historian,  Mr,  Bulnes,  is  going  to  reveal  to  us  the 
historical  truth: 

"Novoa  wished  to  make  the  protocol  imme- 
diately, to  cover  the  last  crack  that  remained  in 
the  wall,  so  that  the  treaty  should  be  approved 
together  with  the  protocol  and  that  everything 
should  be  terminated  at  the  same  time.  To  this 
end,  he  consulted  Santa  Maria,  asking  him  for 
authority  to  take  up  and  decide  the  difficulties 
which  have  arisen  afterwards.  Santa  Maria 
answered  him  to  leave  that  alone  until  its  op- 
portune moment,  when  the  treaty  should  have 
been  approved  by  the  Congresses.  He  added 
that  the  formulation  of  that  protocol  was  a 
governmental  function,  regulatory  of  the 
treaty,  and  that  to  try  to  agree  upon  something 
destined  to  be  carried  out  ten  years  afterwards 
was  to  expose  one's  self  to  repent  later  of  that 
done.  Santa  Maria  attached  little  value  to  the 
protocol.  He  considered  it  secondary  or  regu- 
latory." 

Novoa  to  Santa  Maria,  October  27,  1883: 

"As  a  complement  to  the  treaty,  it  is  neces- 
sary to  make  the  protocol  to  regulate  the  ple- 
biscite relative  to  Tacna  and  Arica,  and  I  would 
like  to  have  you  and  Mr.  Aldunate  give  me  your 
ideas  in  this  respect. 

"Who  will  have  the  right  of  suffrage?  Shall 
it  be  universal  or  must  certain  conditions  be 
exacted  of  the  voter?  The  election  boards: 
shall  they  be  appointed  by  the  political  author- 
ity designating  at  its  own  will  the  persons  to 

45 


compose  them,  or  shall  these  be  elected  from 
among  those  who  pay  the  greater  amount  of 
taxes?  Of  what  nationality  must  their  mem- 
bers be?  Will  any  Peruvian  authority  inter- 
vene? I  hope,  then,  that  you  give  me  your 
ideas  on  this  point  as  soon  as  possible." 

Santa  Maria  answered  him  first  by  this  telegram: 

"November  9,  1883:  The  point  consulted 
upon  is  delicate.  I  see  no  urgency  for  taking  it 
up.  It  is  bound  to  various  events.  It  may  be 
necessary  to  abandon  tomorrow  any  order  of 
ideas  that  may  be  established.  Haste  may  bring 
us  peril.  We  must  await  at  least  the  ratifica- 
tion of  the  treaty.  There  is  no  time  for  writ- 
ing by  steamer." 

Santa  Maria  to  Novoa,  November  14,  1883: 

"Have  you  believed  that  this  point  can  be 
taken  up  now?  Not  only  would  it  be  imprudent 
but  unnecessary  because  it  is  clear  that  the  case 
of  the  declaration  would  not  arrive  if  events 
should  develop  as  they  appear  today.  But  be 
the  determination  of  the  bases  what  it  may,  it 
has  two  very  serious  difficulties:  First,  that 
they  cannot  be  fixed  as  long  as  the  treaty  be  not 
a  treaty  because  there  would  be  something 
ridiculous  in  making  efforts  to  enhance  an  act 
which  it  is  not  yet  known  whether  or  not  it  will 
have  true  existence.  The  bases  or  agreements 
for  the  election  would  be  consecrated  in  one  or 
two  subsequent  protocols  as  a  consequence  of 
the  stipulations  of  the  treaty,  and  these  proto- 
cols are  not  up  to  the  congresses  but  up  to  the 
respective  governments  only  which  tend  to  es- 
tablish the  means  of  sincerely  performing  a  pact. 
We  cannot  anticipate;  and  secondly  if  we 
should  now  fix  the  bases  it  might  well  happen 

46 


that  they  should  prove  either  impossible  or  the 
source  of  odious  reclamations  later.  One  can- 
not calculate  with  so  much  certainty  regarding 
acts  which  are  to  be  performed  ten  years  hence, 
and  in  which  the  inhabitants  of  a  community 
must  intervene  since  the  matter  concerns  them 
for  the  future.  We  would  perhaps  endanger 
success  by  anticipated  agreements  which  may  be 
the  cause  of  repentance  for  one  or  the  other  of 
the  contracting  parties." 

To  this  letter  Novoa  answered: 

"To  Santa  Maria,  November  30,  1883: 
"Protocol:  In  my  letter  of  October  27  I 
asked  you  for  instructions  for  the  Tacna  and 
Arica  plebiscite  as  much  because,  on  expressing 
in  the  third  article  of  the  treaty  that  the  proto- 
col would  be  considered  as  an  integrating  part 
of  it,  it  seemed  to  me  that  on  discussing  the 
treaty  the  protocol  should  also  be  approved,  as 
because,  on  stating  the  terms  of  the  third  stipu- 
lation, Mr.  Aldunate  himself  told  me  that  said 
protocol  would  be  made  opportunely  and  prior 
to  the  meeting  of  the  assembly  so  that  both 
things  might  be  considered  at  the  same  time. 
In  other  respects,  the  Peruvian  government  has 
not  insinuated  anything  regarding  this  matter 
to  me,  but  foreseeing  that  it  might  be  asked  of 
me  that  we  should  take  up  this  matter,  I  wished 
to  have  the  corresponding  instructions  ahead  of 
time.  So  that  since  your  opinion  is  that  this 
must  not  be  thought  of  for  the  present,  there 
is  nothing  further  to  say  on  the  subject." — Bul- 
nes,  "La  Soberania  de  Tacna  y  Arica."  Ex- 
tractos  del  Libro  de  Bulnes,  p.  43. 

Nothing  is  more  eloquent  than  the  document 
which  we  have  just  transcribed.  In  order  that  the 
treaty  of  Ancon  should  have  been  a  definitive  peace 

47 


agreement,  it  was  indispensable,  according  to  the 
very  text  of  the  second  paragraph  of  the  third  clause 
and  according  to  the  thoughts  of  the  negotiators 
Aldunate  and  Novoa,  that  the  protocol  regulating 
the  plebiscite  should  have  been  subscribed. 

Without  the  protocol,  the  agreement  could  not 
meet  the  nature  of  the  peace  because  it  did  not  lead 
to  the  definitive  liquidation  of  the  war  and,  much 
to  the  contrary,  opened  up  the  very  grave  problem 
which  had  resulted  in  the  continuation  of  hostiUties 
after  the  cession  of  Tarapaca  had  been  agreed  upon, 

Bulnes  says: 

"But  this  being  true  it  cannot  be  denied  that 
Novoa's  foresight  was  a  look  into  the  future 
and  that  this  protocol  would  have  obviated  the 
difficulties  which  present  themselves  today  for 
the  definitive  solution  of  the  most  complicated 
problem  which  the  war  of  the  Pacific  origi- 
nated."— Bulnes,  "La  Soberania  de  Tacna  y 
Arica."     Extractos  del  Libro  de  Bulnes,  p.  45. 

The  treaty  of  peace  should  not  have  originated 
any  problem  but  ought  to  have  solved  the  existing 
ones. 

The  non-subscription  of  the  protocol  meant  prac- 
tically that  Chile  reserved  to  itself  the  exercise  of 
its  pressure  on  Peru  in  the  problem  of  Tacna  and 
Arica,  that  is,  to  continue  the  war  by  means  that 
should  not  be  military  and  under  the  form  of  peace. 

The  postponement  of  the  protocol  in  1884  had 
to  be  followed  logically  by  the  indefinite  postpone- 
ment at  the  termination  of  the  ten  years  because 
Chile  followed  Santa  Maria's  policy  of  not  binding 


itself  by  anticipated  agreements  and  of  seeking  the 
most  favorable  moment. 

The  treaty  of  Ancon  being  studied  from  the  point 
of  view  which  we  have  contemplated  in  this  chap- 
ter, it  must  be  agreed  that  it  was  not  an  instrument 
of  peace  but,  on  the  contrary,  an  element  of  discord 
and  a  source  of  interminable  discussions  and  contro- 
versies in  which  the  victor  was  to  pretend  to  super- 
impose itself  upon  the  vanquished  subjecting  it  to  its 
criterion  and  to  its  aspirations.  This  fact  gives  an 
unmistakable  physiognomy  to  the  treaty  of  Ancon 
and  radically  differentiates  it  from  others. 

Of  course  we  are  not  going  to  take  into  account 
the  ridiculous  Chilean  theory  which  compares  the 
treaty  of  Ancon  to  the  pacts  which  establish  a  pre- 
vious cession  referring  their  ratification  to  a  subse- 
quent plebiscite.  To  affirm  that  the  treaty  of  Ancon 
was  a  dissimulated  formula  for  establishing  the  an- 
nexation of  Tacna  and  Arica  on  the  basis  of  a  subse- 
quent plebiscite  is  such  an  absurdity  that  it  is  hardly 
worthy  of  refutation. 

The  theory  of  the  dissimulated  cession  exposed  by 
Chile  for  the  first  time  in  a  circular  of  1901  and 
repeated  in  the  Red  Book  and  Bulnes'  last  publica- 
tions has  only  this  value  and  significance:  It  has  given 
us  the  proof,  presented  by  Chile  itself,  that  Chile 
was  never  disposed  to  honestly  fulfill  this  treaty  nor 
to  hold  the  plebiscite  under  conditions  of  justice. 

Let  us  not,  therefore,  insist  on  the  comparison  of 
the  decisive  plebiscite  established  by  the  treaty  of 
Ancon  with  the  plebiscites  confirmatory  of  previous 
cession  such  as  those  of  Nice,  Savoy  and  St.  Bartholo- 

49 


mew  Island.  The  plebiscite  was  simply  a  condition 
which,  within  a  fixed  period,  was  to  determine  one  of 
these  two  things  r^ither  the  continuation  of  Peruvian 
sovereignty  in  the  territories  of  Tacna  and  Arica  or 
the  extinction  of  that  sovereignty  in  the  improbable, 
or  rather  impossible,  case  of  a  vote  favorable  to  Chile. 

The  plebiscite  came  to  be  the  means  of  deciding 
the  question  which,  besides  the  cession  of  Tarapaca, 
was  the  other  grave  essential  question  of  the  war  for 
which  Peru,  according  to  Mr.  Aldunate's  concession 
already  transcribed,  had  continued  the  resistance  two 
years  more  without  resources  and  without  hopes. 
The  non-regulation  of  the  plebiscite  at  the  opportune 
moment  meant  that  peace  had  not  really  been  made. 
In  this  sense  the  treaty  of  Ancon  was  not  a  true 
treaty  of  peace  but  an  instrument  of  oppression. 

The  pact  was  not  a  perfect  document:  it  lacked 
integrity  and  did  not  answer  the  essential  end  of 
every  treaty  of  peace,  which  is  peace  and  the  liquida- 
tion of  the  war. 


50 


Chapter  VI. 

The  Treaty  of  A  neon  was  a  Unilateral  Imposition 
and  an  Instrument   of  Oppression. 

We  have  proved  in  the  foregoing  chapters  that 
the  treaty  of  Ancon  had  incurable  vices  of  origin: 
First,  because  it  was  signed  by  an  illegitimate  gov- 
ernment and  ratified  by  an  assembly  in  which  the 
Peruvian  departments  or  provinces  not  occupied  by 
the  enemy  were  not  represented ;  second,  because  it 
embodied  the  consecration  of  an  unjustifiable  con- 
quest of  territories  foreign  to  the  object  of  the  strug- 
gle and  essential  for  the  economic  and  political  life 
of  the  vanquished  country  against  the  expressed  will 
of  their  inhabitants;  third,  because  it  imposed  an 
immoral  and  absurdly  exorbitant  war  indemnity; 
fourth,  because  it  violated  the  indisputable  principle 
of  respecting  the  mortgage  incumbrances  which 
weighed  upon  the  ceded  territories;  and,  fifth,  be- 
cause, without  liquidating  the  problems  of  the  war, 
it  opened  up  a  new  problem  which  was  to  permit  the 
victor  to  continue  its  policy  of  hostility  and  oppres- 
sion against  the  vanquished.  x 

In  spite  of  the  declarations  of  some  practical  juris-  "^ 
consults  who,  for  reasons  of  convenience,  accept  the 
absolute  inviolability  of  pacts,  whatever  be  their  im- 
morality and  their  injustice,  the  tendency  predomi- 
nates in  the  modern  international  law  to  affirm  the 
invalidity  of  international  agreements  when  they 
clearly  offend  the  principles  of  reason  and  the  laws 
of  the  lives  of  peoples. 

Heffter  already  said  that  a  State  can  repudiate  a 
treaty  when  it  is  in  conflict  with  the  rights  and  the 

51 


well-being  of  its  people.  Hauteville  affirmed  that 
treaties  which  contain  gratuitous  cessions  or  abandon- 
ment of  essential  natural  rights  are  not  obligatory. 
Bluntschli  thought  that  a  State  can  maintain  that 
the  treaties  incompatible  with  its  development  are 
null.  Fiore,  summarizing  this  overwhelming  cur- 
rent in  international  law,  considers  that  treaties  op- 
posed to  the  development  of  the  free  activity  of  a 
nation  and  which  obstruct  the  exercise  of  its  natural 
rights  are  worthless,  and  finds,  in  the  hght  of  this 
principle,  that  numerous  treaties  made  in  Europe 
seem  to  be  immoral,  iniquitous  and  entirely  lacking 
in  value.  The  foregoing  principles  have  a  perfect 
application  to  the  treaty  of  Ancon.  We  have  proved 
that  the  consequences  of  the  treaty  on  the  territorial 
integrity  and  on  the  economic  future  of  Peru  meant 
practically  the  annulment  of  this  nationahty.  And 
the  problem  which  was  left  without  decision  when 
the  protocol  complementary  to  the  treaty  was  not 
signed  resulted  in  the  most  serious  obstacle  to  the 
moral  and  economic  restoration  of  the  vanquished 
country. 

A  treaty  of  peace,  according  to  the  principles  of 
international  law,  must  embody  a  compromise.  Be- 
side the  rights  of  the  victor,  the  essential  rights  of 
the  vanquished  must  be  left  unimpaired. 

Nys  says : 

"In  the  middle  of  the  eighteenth  century, 
Wolf  taught  that  war  carries  with  it  a  compro- 
mise. The  precise  idea  which  we  must  form 
of  a  treaty  of  peace,  says  William  de  Garden, 
is  that  it  has  for  its  subject  not  only  to  put  an 


52 


end  to  war  but  to  prevent  its  return.  The 
treaty  of  peace  cannot  be  but  a  compromise. 
If  an  exact  and  vigorous  justice  is  not  observed 
there  and  each  one  of  the  parties  is  permitted 
to  pretend  to  receive  what  does  not  belong  to  it, 
peace  shall  rarely  be  possible.  Since,  writes 
the  same  author,  it  is  shameful  to  perpetuate 
war  and  to  carry  it  on  to  the  point  of  the  ruin 
of  one  of  the  parties,  and  since  in  the  justest 
case  one  must  think  of  re-establishing  peace  and 
of  tending  ceaselessly  to  this  salutary  end,  there 
^"'  is  no  course  left  other  than  to  compromise  on 
all  the  pretensions,  on  all  the  damages,  of  one 
party  respecting  the  other,  and  to  extinguish  the 
differences  by  means  of  the  most  equitable  agree- 
ment possible.  One  does  not  here  pass  upon 
the  very  causes  of  the  war  nor  upon  the  contro- 
versies that  the  various  acts  of  hostility  could 
excite;  none  of  the  parties  is  condemned  as  un- 
just nor  could  any  one  tolerate  it;  but  that 
which  each  one  ought  to  have  in  order  to  re- 
nounce its  pretensions  is  agreed  upon." — Nys, 
"Droit  International,"  pp.  746-747. 

No  one  can  doubt  that  the  treaty  of  Ancon  was 
not  destined  to  end  the  war  but  to  perpetuate  it  and 
to  carry  it  to  the  point  of  ruin  of  one  of  the  parties, 
following  William  de  Garden's  expression. 

Modern  authors  think  as  did  Wolf  and  de  Gar- 
den. Phillipson,  in  his  aforementioned  work  at  pp. 
165  and  166,  says: 

"It  follows  from  the  above  observations  that 
a  treaty  of  peace  is  of  necessity  a  compromise, 
being  unlike  other  treaties  which  are  equal 
transactions — that  is,  those  in  which  the  con- 
sideration given  by  one  party.  A,  for  the  promise 
of  the  other,   B,   is  equal,  or  presumed  to  be 

53 


equal,  to  the  consideration  given  by  B  for  the 
promise  of  A.  But  a  treaty  of  peace  is,  as  it 
has  been  aptly  termed,  a  'contract  of  fortune,' 
— for  one  of  the  parties,  if  not  for  both,  it  may 
indeed  be  a  contract  of  misfortune.  It  is  in- 
evitably a  patched  up  arrangement,  providing 
for  each  side  a  roughly  approximate  solution 
of  the  differences  between  them.  Where  terms 
are  dictated  throughout  to  the  utterly  van- 
quished belligerent  at  the  absolute  discretion  of 
the  victor,  the  transaction  cannot,  strictly 
speaking,  be  designated  a  treaty;  it  is  a  unilat- 
eral imposition  of  demands.  Every  treaty  of 
peace  proper  must  have  a  bilateral  character ; 
it  must  involve  reciprocal  concessions,  however 
unequal  they  may  be.  Even  in  earher  ages, 
when  the  jus  victoriae  was  recognized  and  was 
in  certain  respects  more  cruel  than  the  jus  belli, 
we  find  such  restrictions  placed  on  the  victorious 
combatant  as  to  make  his  dealings  with  the  de- 
feated State  a  compromise.  The  object  of  the 
treaty  of  peace  is  not  merely  to  put  a  stop  to  a 
war,  but  also  to  prevent  its  renewal ;  and  this 
latter  purpose  is  accomplished  by  means  of  a 
bargain  settling  each  side's  claims  and  preten- 
sions. It  is  not  an  impartial  judge  who  effects 
this  accommodation ;  it  is  the  disputants  them- 
selves who  do  so,  and  in  general  they  are  un- 
equally matched,  so  that  less  than  justice  can 
be  done.  To  give  each  one  his  due  is  the  ideal 
of  human  relationships ;  but  in  a  treaty  of  peace 
much  less  than  in  man's  other  devices  and  con- 
trivances shall  we  find  this  object  attained." 
(Citing  Vattel)  ;  *  *  *  "Therefore,  since 
it  would  be  dreadful  to  perpetuate  the  war  or 
to  pursue  it  to  the  utter  ruin  of  one  of  the  par- 
ties, and  since,  however  just  the  cause  in  which 
we  are  engaged,  we  must  at  length  turn  our 


54 


thoughts  towards  the  restoration  of  peace,  and 
ought  to  direct  all  our  measures  to  the  attain- 
ment of  that  salutary  object,  no  other  expedient 
remains  than  that  of  coming  to  a  compromise 
respecting  all  claims  and  grievances  on  both 
sides,  and  putting  an  end  to  all  disputes  by  a 
convention  as  fair  and  equitable  as  circumstances 
will  admit  of." 

These  principles  were  relegated  to  complete 
oblivion  by  the  Chilean  negotiators.  The  treaty  of 
Ancon  embodied,  with  the  cession  of  Tarapaca  free 
of  debts  and  the  occupation  of  Tacna  and  Arica  as 
means  of  obtaining  a  supplementary  war  indemnity, 
the  maximum  of  Chile's  pretensions  presented  at  the 
Arica  conference  and  in  the  protocol  of  Vina  del 
Mar.  The  plebiscitary  formula  which  Messrs. 
Novoa  and  Aldunate  accepted  aggravated  that  in- 
tention of  pecuniary  indemnity  embodying  it  in  the 
plebiscitary  clause  which  not  being  defined  had  to 
renew  perpetually  the  sentiments  of  hostility  and 
discord  which  the  war  created. 

The  treaty  of  Ancon  was  not,  therefore,  a  true 
peace  agreement.  The  only  thing  that  Peru  was 
able  to  save  was  the  continuation  of  its  sovereignty  in 
Tacna  and  Arica  and  the  right  of  their  inhabitants 
to  retain  their  nationality.  But  even  regarding  this 
very  right,  Chile,  as  we  have  recalled,  reserved  the 
means  of  abusing  it  by  postponing  the  protocol  con- 
cerning the  rules  of  the  plebiscite  which  ought  to 
consecrate  it. 

In  spite  of  the  unilateral  imposition  character  of 
the  treaty  and  of  its  unqualifiable  injustice,   Peru 


55 


could  not  but  have  these  rights:  first,  the  right  to 
peace,  to  an  equitable  and  reasonable  treatment  and 
to  a  conduct  on  the  part  of  Chile,  if  not  impartial, 
at  least  correct;  second,  the  right  to  have  the  stipu- 
lations of  the  monstrous  pact  which  had  been  im- 
posed upon  it  fulfilled  in  their  spirit  and  in  their 
letter. 

And  Chile  has  not  respected  those  rights  and  has 
violated  the  very  pact  which  consecrated  its  extreme 
aspirations. 


56 


Chapter  VII. 
Chile  Violates  the  Very  Treaty  Which  It  Imposed. 

In  the  introduction  to  my  book,  "Our  Ques- 
tion with  Chile,"  I  have  proved  that  the  treaty  of 
Ancon  ought  to  be  held  to  be  definitively  broken. 
In  this  chapter,  I  must  insist  on  those  arguments  in 
the  light  of  the  principles  consecrated  by  interna- 
tional law. 

No  one  has  dealt  with  the  point  relative  to  the 
breach  of  the  treaty  of  peace  better  than  Vattelj  the 
modern  authors  do  nothing  but  reproduce  this  rule 
without  going  any  further,  either  in  form  or  in  sub- 
stance, with  respect  to  the  truths  formulated  by  the 
famous  master. 

It  is  curious  to  note  that  Vattel  when  he  speaks 
of  the  breach  of  the  peace  points  out  precisely  all 
the  cases  of  violations  committed  by  Chile.  One 
would  say  that  the  writer  of  the  eighteenth  century 
had  the  intuition  of  a  genius  concerning  the  typical 
case  of  breach  of  the  peace  which  was  to  occur  in 
the  nineteenth  century.  Vattel  studied  all  the  forms 
in  which  peace  can  be  violated.  As  time  went  on, 
an  example  was  to  present  itself  which  should  com- 
prise all  the  violations  which  had  appeared  sepa- 
rately in  the  diplomatic  history  of  the  world.  Vattel 
says : 

"To  break  a  treaty  of  peace  is  to  violate  the 
agreement  which  it  contains  doing  that  which 
it  forbids  or  not  doing  that  which  it  prescribes. 
One  may  fail  to  fulfill  the  obligations  arising 
from  a  treaty  in  three  different  manners:  by 
conduct  contrary  to  the  nature  and  to  the  es- 

57 


sence  of  the  treaty  of  peace  in  general,  by  acts 

incompatible  with  the  nature  of  the  particular 

^    treaty  or,  finally,  by  violating  some  one  of  its 

■     express  articles." — Droit  de  Gens,_1820,  p.  744. 

The  three  foregoing  principles  appear  accepted  by 
the  modern  authors.  (See  Halleck's  International 
Law,  Vol.  1,  p.  347,  and  First  Steps  in  Interna- 
tional Law  by  Sir  Sherston  Baker,  Bart. — 1899,  p. 
116.) 

Vattel  explains  in  detail  each  one  of  the  three 
cases  of  violation  of  the  treaty  of  peace.  Regarding 
the  first  he  says : 

"One  acts  against  the  nature  and  essence  of 
any  treaty  of  peace  or  against  peace  itself  when 
one  disturbs  it  without  cause  either  by  taking 
up  arms  and  renewing  the  war  although  one  be 
not  able  to  allege  even  a  possible  pretext,  or  by 
ofiEending  the  mental  comfort  of  the  party  with 
which  the  peace  has  been  made  and  treating  it 
or  its  subjects  in  a  manner  incompatible  with 
the  state  of  peace  and  which  it  be  not  able  to 
suffer  without  faihng  in  its  self  respect." 

Vattel  considers  that  the  peace  is  constituted  by 
respect  to  the  nation  with  which  it  has  been  made 
and  by  good  treatment  accorded  its  subjects. 

All  America  knows  why  Peru  has  not  ceased  to 
cause  its  protests  against  each  one  of  Chile's  offenses 
to  reach  the  countries  of  the  continent,  but  Chile 
has  continued  to  carry  on  a  policy  of  hostility  and 
contempt  regarding  the  rights  of  Peru  and  of  op- 
pression of  Peruvian  subjects  in  the  territories  oc- 
cupied or  conquered.  The  shameful  conduct  of  Mr. 
Lira  in   exacting   unusual   guaranties   for   the  pay- 

58 


ment  of  the  indemnity  and  ofFending  Peru  with 
opinions  concerning  its  solvency  was  contrary  to  the 
nature  of  peace.  That  burlesque  postponement  of 
the  Billinghurst-Latorre  protocol  in  the  Chilean 
Chamber  of  Deputies  during  three  years  was  con- 
trary to  the  respect  to  which  Peru  was  entitled.  The 
projected  agreement  of  1895  which  ceded  to  Bolivia 
the  Peruvian  territories  of  Tacna  and  Arica  was 
contrary  to  the  essence  of  peace  and  to  the  elementary 
principles  of  loyalty  between  the  two  countries. 
Finally,  the  attitude  of  Chile  on  not  giving  satisfac- 
tion for  any  of  the  outrages  consummated  by  its  au- 
thorities and  its  maintaining  cynically  its  policy  of 
violence  in  the  captive  provinces,  in  the  midst  of  the 
astonishment  of  the  other  countries  of  America,  has 
been  contrary  to  that  just  treatment  of  which  Vattel 
speaks. 

Vattel  has  studied  specially  the  treatment  given  to 
the  subjects  of  the  other  country,  and  which  the  lat- 
ter cannot  tolerate  without  failing  in  its  self-respect. 
The  illustrious  writer  has  considered  this  point  sev- 
eral times ;  he  again  calls  attention  to  it  in  the  second 
case  of  violation,  and  that  indicates  that  he  consid- 
ers that  the  maltreatment  of  the  subjects  of  the  coun- 
try with  which  peace  has  been  made  violates  not  only 
peace  in  general  but  the  spirit  and  the  essence  of  the 
treaty  in  particular. 

That  Chile  has  committed  this  violation  is  hardly 
worth  while  proving  when  the  outrages  committed 
by  it  have  acquired  continental  notoriety.  I  refer 
only  to  the  essential  proofs  which  I  published  in  my 
book,  "Documentos  Esenciales  del  Debate  Peruano- 

59 


Chileno,"   Chapters    16  and   17,   Documents  56-59 
and  64-66. 

Vattel  continues: 

"The  second  way  of  breaking  a  treaty  of 
peace  is  to  do  something  contrary  to  that  which 
the  particular  nature  of  the  treaty  requires. 
Thus  every  act  contrary  to  friendship  breaks 
the  treaty  of  peace  made  under  the  express  con- 
dition of  living  always  as  good  friends.  To 
favor  the  enemies  of  a  nation,  to  threaten  its 
citizens  harshly,  to  molest  its  commerce  with- 
out cause,  to  prefer  another  nation  .  .  . ;  to 
protect  its  conspirators  or  rebels,  to  give  them 
asylum;  all  these  acts  are  equally  contrary  to 
friendship." — Droit  de  Gens,  p.  751. 

The  most  interesting  part  of  this  second  point  is 
that  which  refers  to  favoring  the  enemies  of  the  na- 
tion with  which  peace  has  been  made.  The  Chilean 
policy,  immediately  after  the  ratification  of  the  treaty 
of  Ancon,  was  to  encourage  the  countries  which  were 
Peru's  boundary  neighbors  in  their  frontier  preten- 
sions, creating  practically  a  formidable  diplomatic 
entente  under  the  pressure  and  unbreathable  atmos- 
phere of  which  we  have  lived  in  later  years.  The 
project  of  delivering  Tacna  and  Arica  to  Bolivia, 
manifested  since  the  year  1884  and  embodied  in  the 
absurd  pact  of  1895,  had  no  purpose  other  than  to 
create  a  permanent  situation  of  discord  and  hostihty 
between  Peru  and  Bolivia.  Whenever  that  situa- 
tion of  lack  of  harmony  between  the  two  countries 
went  through  an  acute  period,  it  was  the  Chilean 
influence  and  moral  support  which  kept  the  relations 
strained  and  placed  things  on  the  border  of  a  break. 

60 


Peru  decided  to  settle  the  boundary  question  with 
Bolivia  by  means  of  arbitration.  When  the  decision 
which  salomonically  divided  the  territory  between 
both  countries  was  handed  down,  Chile  inspired  Bo- 
livia with  the  idea  of  not  abiding  by  the  decision  and 
upheld  its  policy  in  this  respect.  (See  Document  71 
of  my  book,  "Documentos  Esenciales  del  Debate 
Peruano-Chileno,"  and  the  other  telegrams  published 
by  "El  Comercio,"  of  Lima  in  1909.) 

Peru  was  twice  on  the  verge  of  having  war  with 
Ecuador  and  both  times  due  to  Chilean  influence. 

Chile's  action  regarding  Ecuador  and  Colombia 
against  Peru  has  had  not  only  indirect  and  dissimu- 
lated manifestations  but  express  and  solemn  ones. 
The  protocol  of  January  17,  1902,  stipulated  the  sale 
by  Chile  to  Colombia  of  an  armored  ship  with  ammu- 
nition, provisions  nnd  other  necessary  elements.  In 
the  agreement  of  January  18th  annexed  to  that  pro- 
tocol, the  tripartite  arbitration  agreement  signed  in 
Lima  in  1894  by  the  plenipotentiaries  of  Colombia, 
Ecuador  and  Peru  was  conspired  against,  and  an 
agreement  was  made  to  render  impossible,  after  the 
failure  of  the  tripartite  arbitration,  the  other  arbitral 
agreement  of  1887  between  Ecuador  and  Peru. 
Finally,  when  in  soite  of  those  agreements  the  Span- 
ish arbitration  was  proceeded  with  and  the  decision 
was  about  to  be  handed  down,  the  Chilean  Govern- 
ment incited  Ecuador  to  reveal  itself  agamst  the  pro- 
jected decision.  That  Ecuatorian  attitude  coincided 
with  the  arrival  in  Guayaquil  of  a  Chilean  ship 
which  carried  armaments. 


61 


In  conclusion,  Chile  has  incurred  in  the  second 
violation  of  the  treaty  of  peace  not  only  by  favoring 
the  enemies  of  Peru  but  inspiring  the  policy  of  those 
countries  and  supporting  it  morally  and  materially. 

Vattel  adds: 

"Finally  peace  is  broken  by  the  violation  of 
some  of  the  express  articles  of  the  treaty.  This 
third  manner  of  breaking  it  is  the  most  decided 
and  the  least  susceptible  of  evasions  and  chican- 
ery. The  party  that  fails  to  fulfill  its  obliga- 
tions annuls  the  treaty  in  so  far  as  it  is  con- 
cerned.    As  to  this  there  is  no  doubt." 

While  it  is  true  that  as  regards  the  violations 
previously  considered  there  is  room  for  moral  judg- 
ment and  appreciation  in  general  terms  only,  the 
cause  of  breach  considered  in  the  third  place  by  Vat- 
tel has  a  character  of  precision  which  he  himself  has 
set  off  on  saying  that  there  is  no  room  for  evasions 
and  chicanery. 

The  treaty  of  Ancon  established  the  occupation  of 
the  provinces  of  Tacna  and  Arica  by  Chile,  employ- 
ing express  terms  on  this  point.  First,  boundaries 
of  the  occupation.  Second,  character  of  the  occupa- 
tion, that  is,  rights  of  Chile.  Third,  regime  of  the 
occupation,  that  is,  rights  of  Peruvians.  Fourth, 
period  of  the  occupation. 

Respecting  the  boundaries  it  says:  "It  is  bounded 
on  the  North  by  the  River  Sama  from  its  source  in 
the  Bolivian  frontier  cordilleras  to  its  outlet  to  the 
sea. 

Respecting  the  character  of  the  occupation  it  says 
that  the  territory  will  continue  to  be  possessed  by 

62 


Chile,  that  is,  it  affirms  only  the  continuation  of 
the  precarious  military  occupation  in  the  form  of 
simple  possession. 

Respecting  the  regime  it  says  that  the  territory 
shall  be  subject  to  the  Chilean  legislation  and  authori- 
ties. 

Respecting  the  period  it  says:  "During  the  period 
of  ten  years  from  the  time  of  ratification  of  this 
treaty." 

Repeating  the  character  of  the  Chilean  possession 
and  the  regime  of  the  occupation  it  adds,  on  speak- 
ing of  the  plebiscite,  that  it  shall  be  decided  by  popu- 
lar vote  whether  the  territory  of  the  said  provinces 
becomes  definitively  of  Chilean  ownership  and 
sovereignty  or  continues  to  be  part  of  the  Peruvian 
territory. 

Chile  has  violated  the  first  stipulation  regarding 
the  boundary.  The  River  Sama  is  formed  by  the 
affluence  of  the  Estique,  the  Ticalaco  and  the  Chas- 
paya. 

This  is  a  geographical  question  as  to  which  there 
is  no  room  for  dissertations,  but  verification  of  a 
material  nature,  that  the  principal  branch  of  the 
Sama,  not  only  because  of  the  greater  volume  of  its 
waters,  but  also  because  of  the  direction  of  the  cur- 
rent, is  the  Estique.  Although  it  knew  the  fore- 
going, the  Chilean  Government  and  authorities  pro- 
ceeded to  occupy  the  Peruvian  districts  of  Tarata, 
Tarucache  and  Estique.  There  is  something  more, 
past  the  Barroso  cordillera  in  which  the  River  Sama 
has  its  source,  in  the  midst  of  the  high  plateau  region, 
lie  the  Peruvian  territories  of  Maure  and  Cano  be- 

63 


longing  to  the  Province  of  Tarata.  This  territory 
is  foreign  to  all  discussion  concerning  the  origin  of 
the  Sama  and  belonged  always  to  Tarata  and  not 
to  Tacna.  Notwithstanding  the  foregoing,  Chile 
slowly  and  surreptitiously  has  extended  its  occupa- 
tion to  that  territory  to  which  the  third  article  which 
speaks  solely  of  the  provinces  of  Tacna  and  Arica  in 
no  way  referred. 

It  is  not  the  case  of  a  question  open  to  discussion 
but  the  case  of  a  clear  question  subject  to  an  inspec- 
tion by  experts  only.  Chile  ought  to  have  accepted 
that  inspection  or  any  other  means  of  settlement, 
such  as  arbitration,  for  instance,  if  it  had  wished  to 
fulfill  the  treaty.  But  as  it  had  decided  to  violate 
it,  far  from  solving  the  problem,  if  the  question  to 
which  that  excess  space  gave  rise  may  be  so  called, 
it  closed  itself  to  all  agreement  and  continued  to  oc- 
cupy the  territories  unlawfully  held  and  to  advance 
that  occupation. 

Chile  has  violated,  in  the  second  place,  the  express 
stipulation  relative  to  the  simple  possession  conferred 
upon  it  by  the  treaty.  Nothing  is  clearer  in  inter- 
national law  than  the  distinction  between  possession 
and  sovereignty  or  ownership;  that  distinction  cor- 
responds to  the  one  that  the  civil  law  establishes  be- 
tween possession  and  ownership.  That  the  treaty 
did  not  grant  Chile  full  sovereignty  is  evident. 
Sovereignty  subject  to  termination  on  the  lapse  of  a 
period  is  never  conceivable. 

The  Chilean  theory  which  affirms  that  since  Chile 
could  exercise  the  rights  of  jurisdiction  and  legisla- 
tion it  had  the  right  of  sovereignty  is  unfounded. 

64 


Sovereignty  comprises,  besides  legislation  and  juris- 
diction, the  concept  of  permanency  and  of  definitive 
ownership.  The  treaty,  not  only  once  but  several 
times,  has  set  off  the  precarious  possession  which  it 
\  gave  Chile.  As  we  have  already  said,  the  words 
"shall  continue  to  be  possessed  by  Chile,"  mean  sim- 
ply the  continuation  of  the  possession  which  Chile 
enjoyed  as  a  result  of  the  military  occupation.  Be- 
sides, the  treaty  has  clearly  differentiated  the  juridi- 
cal conditions  of  Tacna  and  Arica:  the  one  which 
was  theirs  according  to  the  treaty  and  that  which 
they  would  be  in  in  case  of  a  plebiscite  favorable  to 
Chile.  The  former  is  of  possession,  the  latter  of 
sovereignty  and  ownership. 

Let  us  hear  the  Chilean  authorities  on  this  matter. 

Suarez  Mujica  says: 

"It  must  be  borne  in  mind  that  the  Peruvian 
sovereignty  in  Tacna  and  Arica  is  suspended  but 
not  extinguished." 

Carlos  Walker  Martinez  says : 

"It  must  not  be  forgotten  that  in  Tacna  and 
Arica  the  possession  is  Chile's  but  the  sover- 
eignty is  Peru's." 

This  being  established,  let  us  examine  the  attri- 
butes which  Chile  has  usurped  or,  rather,  which 
Chile  has  exercised  in  the  territories  of  temporary 
possession.     Let  us  simply  recall  the  following : 

First,  Chile  has  organized  these  territories  within 
their  permanent  political  boundaries  creating  new 
organisms  different  from  those  which  existed  within 
the  former  constitution  of  the  provinces. 

Second,  it  has  established  in  an  arbitrary  manner 
the  boundaries  between  Arica  and  Pisagua,  including 

65 


within  the  latter  the  borax  deposits  of  Chilcaya  which 
unquestionably  belonged  to  Arica.  Territorial  de- 
marcations do  not  require  the  simple  exercise  of 
temporary  legislation  and  jurisdiction  but  the  more 
ample  one  of  sovereignt}\ 

Third,  Chile,  by  the  treaty  of  1904,  has  fixed  the 
eastern  boundaries  of  Tacna  and  Arica  with  Bolivia, 
ignoring  Peru.  International  boundary  questions 
can  be  settled  by  the  owner  and  sovereign  of  the  ter- 
ritory only. 

Fourth,  Chile  has  contracted  for  the  construction 
of  a  railroad  which  involves  permanent  responsibili- 
ties and  encumbrances  with  respect  to  the  territory, 
without  consulting,  and  without  the  acquiescence  of, 
the  true  sovereign  which,  according  to  the  treaty  of 
Ancon,  was  Peru,  and  the  rights  of  sovereignty  of 
which  were  only  in  abeyance  during  the  temporary 
occupation. 

It  is  not  necessary  for  us  to  give  more  facts.  The 
confession  of  the  party  suffices.  Chile,  in  order  to 
explain  the  measures  which  it  has  taken  with  respect 
to  Tacna  and  Arica  has  had  to  invent  the  theory  of 
sovereignty  for  a  term  and  to  affirm  that  the  treaty 
of  Ancon  involved  the  dissimulated  cession  of  Tacna 
and  Arica. 

/  Chile  has  also  violated  the  express  stipulation 
which  says  that  the  territory  shall  be  subject  to  the 
Chilean  legislation  and  authorities. 

V  The  Peruvian  negotiators  of  the  treaty  of  Ancon 
could  not  accept  the  occupation  of  Tacna  and  Arica 
leaving  their  regime  to  the  will  of  Chile.  That 
would  have  been  not  only  stupid  but  a  crime  against 
international   law.     Those   negotiators   exacted   for 

66 


Tacna  and  Arica,  that  is,  for  the  inhabitants  of  those 
regions,  the  rights  and  guarantees  which  the  Chilean 
constitution  and  laws  granted  to  the  inhabitants  of 
Chile.  It  was  not  possible  that  to  the  misfortune  of 
occupation  by  another  country  should  be  added  that 
of  the  individual  rights  of  those  inhabitants  being  at 
the  mercy  of  the  occupant. 

On  this  point,  as  on  the  others,  there  is  no  room 
for  discussion  in  the  face  of  the  explicit  terms  of  the 
treaty. 

Well,  then,  Chilean  legislation  confers  on  all  the 
inhabitants  of  Chilean  territory  the  rights  known 
by  the  name  of  individual  guarantees,  that  is,  individ- 
ual liberty,  inviolability  of  the  home,  freedom  of 
religion,  of  thought,  of  the  press,  of  teaching,  and  of 
work,  the  right  of  property  and,  finally,  the  right  of 
being  judged  by  the  laws  and  by  the  tribunals  which 
those  laws  recognize. 

From  the  moment  when  Chile  decided  to  under- 
take the  policy  called  the  policy  of  chilenization,  all 
these  rights  have  been  violated. 

It  was  begun  by  closing  the  Peruvian  schools  and 
by  refusing  permission  to  open  new  schools.  (See 
Documentos  Esenciales  del  Debate  Peruano-Chileno, 
Ds.  56  and  57.) 

Owing  to  this,  the  Attorney  General  of  Chile  con- 
fessed categorically  that  those  schools  could  not  be 
closed  and  that  the  opening  of  new  ones  could  not 
be  prohibited  under  the  constitution  of  Chile,  but 
that  the  Government  might  do  both  those  things  un- 
der the  martial  law  which  it  had  the  right  of  impos- 
ing on  the  occupied  provinces. 


67 


That  means,  then,  that,  in  accordance  with  the 
highest  official  juridical  criterion  in  Chile,  the  regime 
which  the  Government  was  to  apply  to  those  prov- 
inces was  that  of  martial  law  and  not  that  of  its 
ordinary  legislation.  We  abide  by  the  complete 
proof  which  the  Attorney  General  of  Chile  furnishes 
us  with. 

After  the  closing  of  the  schools,  offenses  were  com- 
mitted against  the  Peruvian  societies  by  trespassing 
into  their  establishments  and  destroying  them.  At 
the  same  time,  the  printing  establishments  of  the 
Peruvian  newspapers  were  wrecked.  The  rights  of 
association  and  freedom  of  thought  were  thus  sup- 
pressed. 

Then  came  the  closing  of  the  churches  and  the 
expulsion  of  the  Peruvian  priests,  a  double  offense 
against  the  right  of  freedom  of  cult  and  against  the 
right  of  security. 

The  priests  who  were  notified  of  the  expulsion 
presented  a  habeas  corpus  petition  to  the  Court  of 
Tacna,  upon  which  petition  the  Court  could  not  but 
act  favorably.  The  expulsion  was  accomplished  in 
flagrant  violation  of  the  decision  of  the  tribunal.  As 
in  the  case  of  the  schools,  we  submit  as  proof  of  what 
we  affirm  the  decision  of  the  Court  of  Tacna.  At 
the  same  time,  the  workmen  were  being  expelled 
from  the  shore,  pressure  was  being  exerted  on  the 
commercial  houses  to  dismiss  the  Peruvian  employees 
and  a  barbarous  law  of  expropriation  was  being  pre- 
pared destined  to  wrest  the  real  property  from  the 
hands  of  its  legitimate  owners,  compelling  them  to 
emigrate.     Those  measures  involved  the  extinction 

68 


of  the  rights  of  work  and  of  property.  Crowning 
all  this,  the  expulsion  en  masse  of  the  Peruvians  was 
accomplished  and  the  other  outrages  stated  in  detail 
in  Document  66  of  our  aforementioned  book,  "Docu- 
mentos  Esenciales  del  Debate  Peruano-Chileno," 
were  committed. 

The  breaking  off  of  relations  decided  upon  by  the 
Government  of  Peru  in  the  following  words:  "The 
Government  in  the  face  of  such  a  situation  considers 
it  useless  to  maintain  its  representatives  in  this  capi- 
tal," was  a  consequence  of  all  this.  (Document  59, 
Documentos  Esenciales  del  Debate  Peruano-Chi- 
leno ) . 

Chile,  finally,  has  violated  the  express  stipulation 
as  to  the  period  of  occupation. 

It  is  not  true  that,  as  Chilean  writers  affirm,  the 
period  of  ten  years  was  fixed  principally  for  the 
plebiscite  and  secondarily  for  the  occupation  and  that 
the  condition  to  put  an  end  to  the  latter  was  the  hold- 
ing of  the  plebiscite. 

It  suffices  to  read  the  third  clause  to  convince  one's 
self  of  the  cunning  and  chicanery  of  this  line  of 
argument.  The  treaty  says,  "the  territory  shall 
continue  to  be  possessed  .  .  .  during  the  period  of 
ten  years  counted  from  the  time  of  ratification  of 
this  treaty  of  peace."  There  is  nothing  more  cate- 
gorical and  absolute  than  this  clause. 

Pursuant  to  the  principles  of  law,  the  lapse  of 
the  period  results  in  the  cessation  of  the  juridical 
situation  for  which  that  period  has  been  established. 
The  expiration  of  the  period  of  ten  years  ought  to 


69 


have    resulted   automatically   in   the    evacuation    of 
the  territories  of  Tacna  and  Arica. 

To  suppose  that  the  plebiscite  contemplated  in 
that  article,  in  a  paragraph  other  than  that  in  which 
the  period  of  time  is  spoken  of,  was  the  condition 
upon  which  the  termination  of  the  occupation  de- 
pended, is  not  only  illogical  and  antigrammatical  but 
would  have  involved  the  injustice  of  leaving  the 
duration  of  the  occupation  at  the  mercy  of  the  will 
of  Chile  for  holding  the  plebiscite. 

The  period  is  an  absolute  concept  as  is  every 
mathematical  concept.  It  is  never  possible  to  say 
that  something  the  continuation  of  which  is  subject 
to  a  term  may  exceed  that  term  by  reason  of  some 
other  fact.  In  that  case  the  dissolving  condition  is 
no  longer  the  term  but  that  fact  and  that  is  neither 
the  letter  nor  was  it  the  spirit  of  the  treaty  of  peace. 

Chile,  far  from  evacuating  the  territory  and  dehv- 
ering  it  to  its  legitimate  owners  or  from  accepting, 
in  the  worst  of  cases,  a  mixed  administration,  trans- 
formed the  simple  possession  into  the  ample  exercise 
of  the  rights  of  sovereignty  and  systematically  eluded 
the  plebiscite. 

But  this  takes  us  to  a  new  and  more  interesting 
violation  of  the  treaty  contemplated  also  by  the  sub- 
tle and  profound  intelligence  of  Vattel. 

This  author  said : 

"Pretended  delays  are  the  equivalent  of  an 
express  refusal  (he  refers  to  the  fulfillment  of 
the  treaty  of  peace)  and  they  do  not  differ  from 
it  but  by  the  artifice  with  which  the  party  that 
employs  them  would  wish  to  cover  its  bad  faith. 
It  adds  fraud  to  perfidy  and  really  violates  the 

70 


article  which  ought  to  be  complied   with." — 
Droit  de  Gerio,  p.  752. 

This  is  precisely  the  case  of  Chile  regarding  Peru. 
Alleging  pretexts,  it  has  delayed  the  holding  of  the 
plebiscite,  adding  fraud  to  perfidy. 

An  agreement  as  to  the  holding  of  the  plebiscite 
was  reached  twice:  in  the  protocol  of  the  year  1894 
and  in  the  treaty  of  arbitration  of  1898.  The  for- 
mer, entered  into  with  the  approval  of  the  Chilean 
Government,  was  later  disapproved  without  any  ex- 
planation; and  the  latter  approved  by  Peru  and  by 
the  Chilean  Senate  was  delayed  in  the  Chamber  of 
Deputies  during  three  years  in  spite  of  the  Peruvian 
efforts  to  the  end  that  this  body  should  pass  upon  it. 
Finally,  that  Chamber  returned  the  treaty  to  the 
Executive,  forgetting  the  formidable  admonition  of 
the  illustrious  Chilean  orator,  Carlos  Walker  Mar- 
tinez, that  such  an  attitude  was  repugnant  to  the 
moral  interests  and  to  the  prestige  of  Chile. 

Peru  since  the  year  1892  offered  the  most  ample 
and  conciliatory  bases  for  the  holding  of  the  plebis- 
cite (see  Documents  48-55  of  my  aforementioned 
book,  "Documentos  Esenciales  del  Debate  Peruano- 
Chileno"). 

All  the  missions  which  Peru  has  accredited  before 
Chile  have  had  but  one  object:  to  obtain  the  plebis- 
cite on  bases  of  justice  and  of  truth. 

None  of  them  showed  a  spirit  of  intransigency ; 
they  simply  proposed  elementary  conditions  concern- 
ing the  plebiscite:  truth,  neutral  supervision,  vote  of 
the  natives,  and  arbitration  for  all  questions  that  it 
might  not  be  possible  to  settle  directly.     Peru  even 

71 


accepted  that  the  Chileans  with  the  residence  which 
the  Chilean  law  requires  for  the  establishment  of 
domicile  should  vote.  It  is  not  necessary  that  we 
accumulate  proofs  in  this  respect.  We  have  some- 
thing which  is  worth  more  than  all  that :  the  declara- 
tions of  Chilean  notables.  The  following  para- 
graph from  Bulnes  has  been  cited  to  satiation  but  it 
shall  never  be  impertinent  to  quote  it: 

"Peru  has  been  listening  to  the  clamour  of 
the  inhabitants  of  those  provinces  to  incorporate 
themselves  in  their  former  nationality  and  by 
patriotism  and  even  by  decorum  it  could  not 
manifest  itself  unfeehng  to  this  pretension.  Peru 
has  had  blind  confidence  in  the  plebiscite." 

The  Chilean  Senator  Ross  confirms  what  Bulnes 
says: 

"The  ten  year  period  for  holding  the  stipu- 
lated plebiscite  ended  in  1893,  twenty- five  years 
ago,  and  this  act  has  not  been  performed. 

"Why?  We  can  consciously  affirm  that  it 
has  not  been  performed  because  Chile  has  ob- 
structed opposing  all  kinds  of  difficulties  and 
dilatory  measures." 

Those  difficulties  arose  from  various  plans,  all  of 
them  contrary  to  the  spirit  of  the  treaty,  which  Chile 
entertained  regarding  Tacna  and  Arica.  It  thought 
at  one  time  of  keeping  those  territories  and  it  did 
not  hesitate  to  seek  the  collaboration  of  the  English 
or  French  creditors  of  Peru.  It  offered  the  former 
the  ten  million.  Later  it  secretly  agreed  with  Mr. 
Bacourt,  France's  representative,  upon  the  delivery 
of  the  ten  million  ransom  to  the  end  of  causing  the 
influence  of  the  French  creditors  and  of  the  Govern- 

72 


ment  of  France  to  be  exerted  in  favor  of  the  reten- 
tion of  those  territories.  Later,  reviving  the  pro- 
jects of  Mr.  Santa  Maria,  it  thought  of  dehvering 
those  territories  to  Bolivia.  Then  it  mocked  BoHvia 
and  decided  to  accomplish  the  conquest  in  the  midst 
of  peace  and  then  came  martial  lavi^  and  the  diplo- 
matic pressure  exerted  on  Peru  through  the  neigh- 
boring countries:  in  one  word,  the  continuation  of 
'the  vrar  w^ithout  military  hostilities. 

The  treaty  of  Ancon  from  its  origin  was  not  an 
instrument  of  peace;  its  character  of  an  instrument 
of  oppression  and  violence  appears  more  clearly  in 
the  manner  in  which  Chile  executed  it. 

Chile  has  renewed  the  war  or,  rather,  continued 
it.  The  consequences  which  Vattel,  and  with  him 
all  the  authors,  foresaw,  when  the  peace  is  not  just 
and  does  not  respect  the  rights  of  the  vanquished, 
have  happened  literally. 

We  would  like  to  touch  here  upon  the  violations 
of  international  law  committed  by  Chile  against 
Peruvian  private  property  rights  which  it  ought  to 
have  respected  in  Tarapaca;  and  upon  the  conduct 
of  Chile  regar<iing  the  clauses  of  the  treaty  of  Ancon 
which  refer  to  the  creditors  of  Peru.  The  urgency 
of  the  necessity  of  publishing  this  pamphlet  has  not 
permitted  us  to  gather  the  facts  concerning  these  two 
important  matters  which  we  will  take  up  later  in  a 
supplementary  study. 


73 


Chapter  VIII. 

The   Indivisibility    of   the    Treaty    of   A  neon.     Its 

Total  Nullity  Due  to  the  Violation  of  the 

Third  Clause. 

Pursuant  to  international  law,  if  a  treaty  is  vio- 
lated by  one  of  the  parties,  the  other  is  released  from 
the  obligation  to  perform  it. 

As  some  practical  minds,  in  the  face  of  this  rule, 
oppose  the  erroneous  idea  of  the  partial  nullity  of 
treaties,  it  is  convenient  for  us  to  consider  the  origin 
and  evolution,  through  the  history  of  international 
science,  of  the  principle  which  we  invoke.  Vattel, 
speaking  precisely  of  the  treaty  of  peace,  says: 

"It  is  asked  if  the  violation  of  one  article  only 
of  a  treaty  can  result  in  its  entire  breach.  Some 
have  distinguished  between  the  various  articles 
and  state  the  opinion  that  if  a  treaty  is  violated 
in  some  of  those  articles,  the  peace  subsists  re- 
specting the  others.  But  Grotius'  opinion 
seems  to  me  evidently  founded  on  the  nature 
and  spirit  of  treaties  of  peace.  This  great  man 
says:  'that  all  the  articles  of  a  treatj^  of  peace 
are  intertwined  conditionally  as  if  it  had  been 
formally  said :  I  will  do  this  or  the  other  thing 
provided  that  you  on  your  part  do  this  or  the 
the  other  thing.'  " — Droit  de  Gens,  p.  751. 

One  of  the  authors  to  whom  Vattel  refers  is  Wolf, 
who  maintained  the  strange  theory  by  virtue  of 
which  the  various  articles  of  a  treaty  ought  to  be 
considered  as  so  many  particular  treaties  made  at 
the  same  time.  Vattel  has  rightly  declared  this  doc- 
trine absolutely  unsustainable.  "Even  although  the 
immediate  bond  between  some  of  the  articles  be  not 

74 


seen,"  says  he,  "they  are  united  by  the  common  com- 
pensatory relation  in  view  of  which  the  contracting 
parties  adopt  them.  All  of  that  which  is  comprised 
in  one  treaty  has  the  nature  and  force  of  reciprocal 
promises  unless  this  has  been  formally  excepted." 

The  writers  subsequent  to  Vattel  have  done  noth- 
ing other  than  to  reaffirm  the  principle  set  by  him  in 
conformity  with  the  thought  of  Hugo  Grotius,  the 
founder  of  international  science. 
/  Vattel  does  not  accept  the  distinction  later  made 
/by  Pinheiro  Ferreira  between  the  essential  and  non- 
'  essential  articles  which  weakens  the  efficacy  of  the 
principle.     Let  us  hear  the  master  once  more: 

"It  is  no  less  useless  to  think  of  distinguishing 
here  between  the  articles  of  great  importance 
and  those  which  are  of  small  importance ;  under 
the  law  strictly  interpreted,  the  violation  of  the 
least  important  article  releases  the  party  damni- 
fied from  the  obligation  to  perform  the  others, 
because,  as  we  have  just  seen,  they  are  bound  the 
ones  to  the  others  conditionally.  Besides,  what 
a  source  of  dispute  such  a  distinction  would 
give  rise  to!  Who  will  decide  the  importance 
of  the  article  violated?" — Droit  de  Gens,  p. 
758. 

We  will  see  how  that  differentiation  made  by 
Pinheiro  Ferreira  and  later  reproduced  by  Calvo  is 
disapproved  by  the  majority  of  authors. 

The  principle  of  indivisibility  of  treaties  not  only 
was  incorporated  in  the  law  but  made  uniform  the 
practical  relations  of  peoples  to  the  point  that  when 
the  parties,  on  signing  a  treaty  of  peace  or  any  kind 
of  a  treaty,  wished  to  prevent  its  total  annulment 

75 


as  a  consequence  of  the  violation  of  one  of  these 
articles  they  expressly  explained  this  circumstance  in 
the  clause  called  "de  mantenu." 
Vattel  says : 

"It  is  added,  with  reason,  that  when  it  is  de- 
sired that  the  agreement  do  not  lose  its  force  the 
express  clause  is  added  that  even  in  case  one  of 
the  articles  of  the  treaty  be  violated  the  others 
shall  not  cease  to  subsist  in  full  force.  An 
agreement  may  doubtless  be  made  on  this  mat- 
ter ;  it  may  even  be  agreed  that  the  violation  of 
an  article  shall  not  cause  the  nullity  of  those 
corresponding  to  it  and  which  are  as  its  equiva- 
lent. But  if  this  clause  is  not  found  expressly 
stated  in  the  treaty  of  peace,  the  violation  of  a 
sole  article  endangers  the  whole  treaty  as  we 
have  proved  on  speaking  of  treaties  in  general." 
— Droit  de  Gens,  p.  752. 

Nys  confirms  the  foregoing  in  the  following  words : 

"Among  the  stipulations  concerning  the 
execution  of  treaties  and  imagined  by  diplomacy 
there  used  to  be  that  known  as  'de  mantenu' ; 
it  was  expressly  declared  that  every  infraction 
of  the  peace  would  be  prosecuted  and  satisfac- 
tion given  therefor  and  that  it  would  not  cause 
the  caducity  of  the  peace." — Droit  Interna- 
tional, 1912,  p.  754. 

The  invention  of  the  clause  aforesaid  reaffirms  the 
force  and  the  prestige  of  the  principle  of  indivisi- 
bihty. 

In  the  face  of  the  violation  of  the  treaty  of  peace 
by  one  of  the  contracting  parties,  the  other  has  the 
right  of  declaring  the  treaty  broken  or  of  letting  it 
subsist.      (Vattel,  Droit  de  Gens,  p.  756.) 

76 


Modern  writers  such  as  De  Louter  and  Oppen- 
heim  repeat  the  same  concepts.     The  former  says : 

^  "The   treaty  of   peace,   as   all   international 

conventions,  rests  on  good  faith  and  supposes 
the  sincere  intention  of  strictly  performing  its 
stipulations.  The  peace  is  indivisible  and  un- 
conditional, that  is,  it  must  be  executed  com- 
pletely in  all  its  parts  and  without  any  reserve. 
A  voluntary  violation  is  called  breach  of  the 
peace." — J.  De  Louter,  Le  Droit  International 
Positif,  Vol.  2,  1920,  p.  385. 

Breach  of  Treaty  of  Peace. 
Section  278.  Just  as  is  the  performance,  so 
is  the  breach  of  peace  treaties  of  great  import- 
ance. A  peace  treaty  can  be  violated  in  its  en- 
tirety, or  in  one  of  its  stipulations  only.  Vio- 
lation by  one  of  the  parties  does  not  ipso  facto 
cancel  the  treaty ;  but  the  other  party  may  can- 
cel it  on  this  ground.  Just  as  with  violation 
of  treaties  in  general,  so  with  violations  of  trea- 
ties of  peace,  some  publicists  maintain  that  a  dis- 
tinction must  be  drawn  between  essential  and 
non-essential  stipulations,  and  that  only  viola- 
tion of  essential  stipulations  creates  a  right  for 
the  other  party  to  cancel  the  treaty  of  peace.  It 
has  been  shown  above,  that  the  majority  of  pub- 
licist rightly  oppose  the  distinction. — "Interna- 
tional Law,"  Oppenheim,  Vol.  2  (1921)— War 
and  Neutrality,  p.  372. 

The  treaty  of  peace  is,  therefore,  the  same  in 
every  respect  as  the  synalagmatic  treaties  in  general 
respecting  which  the  indivisibility  is  not  discussed. 

Let  us  follow  step  by  step  the  reaffirmation  of  this 
principle  in  the  development  of  international  law. 
Wheaton  says: 

77 


The  violation  of  any  one  article  of  the  treaty 
is  a  violation  of  the  whole  treaty;  for  all  the 
articles  are  dependent  on  each  other,  and  one  is 
to  be  deemed  a  condition  of  the  other.  A  vio- 
lation of  any  single  article  abrogates  the  whole 
treaty,  if  the  injured  party  so  elects  to  consider 
it.  This  may,  however,  be  prevented  by  an 
express  stipulation,  that  if  one  article  be  broken, 
the  others  shall  nevertheless  continue  in  full 
force.  If  the  treaty  is  violated  by  one  of  the 
contracting  parties,  either  by  proceedings  incom- 
patible with  its  general  spirit,  or  by  a  specific 
breach  of  any  one  of  its  articles,  it  becomes  not 
absolutely  void,  but  voidable  at  the  election  of 
the  injured  party.  If  he  prefers  not  to  come  to 
a  rupture,  the  treaty  remains  valid  and  obliga- 
tory. He  may  waive  or  remit  the  infraction 
committed,  or  he  may  demand  a  just  satisfac- 
tion. (2) — Wheaton's  International  Law, 
1855,  p.  621. 

Pomeroy,  in  his  International  Law,  states  the 
same  principle. 

Field,  in  his  International  Code,  1876,  page  82, 
article  202,  considers  the  extinction  of  international 
obligations  "by  the  breach  of  the  stipulations  by  the 
nation  bound  to  fulfill  them." 

Woseley,  1878,  at  page  180,  affirms  the  same  prin- 
ciple. 

Bluntschli  recognizes  the  termination  of  treaties 
by  the  dissolving  condition  subsequent.  (Le  Droit 
International,  1881,  p.  266,  article  454.) 

Pradier  Fodere  discusses  at  length  the  concept  of 
the  dissolving  condition  subsequent,  making  the  dis- 
tinction between  the  express  dissolving  condition  sub- 
sequent and  the  tacit  dissolving  condition  subsequent 

78 


which  exists  in  all  the  synalagmatic  contracts  for  the 
cases  in  which  one  of  the  parties  does  not  fulfill  its 
obligation.  Regarding  international  law,  he  says 
that  when  the  treaties  are  made  with  an  express  dis- 
solving condition  subsequent  and  the  latter  happens, 
they  cease  to  be  binding  as  under  the  civil  law,  but 
that  as  to  the  happening  of  a  tacit  dissolving  condi- 
tion subsequent  consisting  in  one  party's  not  per- 
forming its  obligations,  it  is  useless  to  recall  that  it 
cannot  give  rise  to  any  action.  But,  he  adds:  "The 
party  damnified  by  the  fault  of  a  power  which  has 
refused  to  perform  a  treaty  can  rightfully  consider 
itself  released  from  it  if  it  sees  fit  to  do  so.  It  is  up 
to  the  contracting  parties  only  to  appreciate  the  im- 
portance of  infractions  of  the  treaty  and  to  decide 
whether  or  not  they  refer  to  accessory  clauses  which 
can  be  derogated  or  modified  without  altering  tTie 
ensemble  of  the  stipulations  or  whether  violation  of 
essential  clauses,  the  non-performance  of  which  im- 
plies the  violation  of  the  treaty,  are  involved."  (P. 
Pradier  Fodere,  Droit  International  Public,  1865, 
p.  919.) 

Calvo  affirms  the  same  principle,  stating  the  fol- 
lowing: 

"A  treaty  may  terminate  prior  to  the  time 
fixed  for  its  duration  when,  without  the  causes 
of  modification  and  annulment,  which  we  have 
just  indicated,  one  of  the  parties-  refuses  to 
abide  by  its  obligations,  thus  implicitly  giving 
the  other  the  right  of  freeing  itself  in  like  man- 
ner. In  general,  if  the  agreement  is  considered 
as  an  indivisible  whole,  it  must  be  admitted  that 
such  a  refusal  does  not  refer  to  one  point  only, 


79 


but  causes  the  caducity  of  the  entire  treaty  by 
virtue  of  the  axiom  that  the  principal  thing  in- 
volves the  accessory  thing." — Droit  Interna- 
tional, 1887,  p.  401. 

Phillimore  says  the  same  (Com.  DXCVII). 
Glenn,  in  his  International  Law,   1895,  at  page 
153,  ssLys: 

110.  A  treaty  is  voidable  under  the  follow- 
ing circumstances:  (e)  When  there  is  a 
breach  by  one  of  the  parties.  But  the  effect, 
when  there  is  a  breach  of  one  or  more  clauses 
only,  depends  upon  the  circumstances  of  each 
case. 

Rivler,  in  his  Principles  of  International  Law, 
1896,  at  page  195,  says  the  following: 

"The  non-performance  of  a  treaty  by  one  of 
the  contracting  States  gives  the  other  the  right 
of  deeming  itself  released  or  of  exacting  damages 
and  interests.  The  indivisibility  recovers  here 
the  predominant  position.  If  some  one  of  the 
clauses,  even  of  those  which  seem  of  least  im- 
portance, is  violated,  there  is  no  longer  any  se- 
curity as  to  the  others.  It  may  be  said  that 
each  clause  constitutes  a  condition  of  all  the 
others.  There  is  no  room  for  distinguishing 
between  the  principal  and  accessory,  connected 
or  disconnected,  articles.  All  the  articles  have 
the  same  value.  They  constitute  an  indivisible 
whole." 

The  genial  Westlake  also  inclines  to  this  criterion 
although  he  understands  that  the  right  of  denouncing 
a  treaty  exacts  a  better  definition  than  can  be  reached 
in  the  present  state  of  international  law.  He  agrees, 
however,  that  it  cannot  be  condemned  but  exercised 

80 


with  a  grave  sense  of  moral  responsibility.      (Inter- 
national Law,  1904,  p.  284.) 

Merignac,  in  his  Traite  de  Droit  International, 
1907,  at  page  789,  says  the  indentical  thing: 

"If  one  of  the  parties  does  not  perform  its 
obligations  the  other  has  the  right,  as  in  every 
synalagmatic  contract,  after  demands  without 
result,  to  denounce  the  treaty.  Each  State 
then,  freely  and  under  its  own  responsibility,  de- 
cides what  conduct  it  ought  to  follow  in  the 
face  of  the  resistance  of  the  other  contracting 
party." 

Despagnet  and  De  Boeck  (Cours  de  Droit  Inter- 
national Public,  1910,  page  706)  also  affirm  the  in- 
divisibility although  they  incline  to  consider  it  exist- 
ent in  grave  cases  only.  The  following  are  their 
words,  at  page  948,  referring  precisely  to  the  treaty 
of  peace : 

"The  non-performance  by  one  of  the  con- 
tracting parties  cannot  result  in  the  breach  of 
peace  except  when  it  is  sufficiently  grave  and 
persists  in  spite  of  the  reclamations.  It  is,  be- 
sides, a  question  of  the  appreciation  of  a  ques- 
tion of  fact,  which  appreciation  varies  accord- 
ing to  circumstances  and  according  to  the  in- 
terest that  may  be  had  in  the  maintenance  or  in 
the  breach  of  peace." 

As  is  seen,  the  authors  hitherto  cited  fully  accept 
the  principle  of  indivisibility,  in  spite  of  their  pru- 
dential reservations,  and  exact  only  the  grave  nature 
of  the  breach  and  the  reclamations  of  the  party 
damnified  to  secure  the  fulfillment  of  the  treaty  be- 
fore declaring  its  caducity. 

81 


Bevilaqua  affirms  the  principle  in  a  more  cate- 
gorical way  in  his  Direito  Publico  International, 
1911,  at  page  39: 

"The  non-performance  of  a  treaty  by  one  of 
the  contracting  parties  entitles  the  other  to  the 
rescision." 

The  identical  rule  is  accepted  by  Nys  in  his  Droit 
International,  1912,  at  page  531,  following  in  this 
Rivier.  He  considers  the  articles  of  a  treaty  as  an 
indivisible  whole. 

Bonfils,  in  his  Droit  International,  1912,  at  page 
547,  reiterates  the  same  rule  in  the  precise  manner 
which  is  peculiar  to  him: 

"The  non-performance  by  one  of  the  con- 
tracting parties  entitles  the  other  to  be  released 
from  its  obligations.  Public  treaties,  being 
synalagmatic  contracts,  have  a  tacit  dissolving 
condition  subsequent  as  do  the  synalagmatic 
agreements  under  the  civil  law,  but  with  an 
important  small  difference,  however.  Under 
the  civil  law  the  non-performance  of  the  agree- 
ment by  one  of  the  parties  entitles  the  other 
only  to  interpose  a  judicial  action  to  the  end  of 
obtaining  a  rescision  and  damages.  In  public 
international  law,  in  the  absence  of  a  common 
judicial  power  superior  to  the  States,  each  State 
appreciates,  freely  and  on  its  own  account  and 
risk,  whether  or  not  it  can  consider  itself  re- 
leased from  its  obligations  due  to  the  non-per- 
formance, frequently  partial,  and  sometimes 
total,  imputable  to  the  other  contracting 
States." 

The  same  principle  of  the  tacit  dissolving  condi- 
tion subsequent  is  affirmed  by  Julio  Diena  in  his 
Diritto  Internazionale,  1914,  at  page  432. 

82 


Foulke,  in  his  International  Law,  1920,  at  page 
444,  although  he  appreciates,  as  do  the  authors  pre- 
viously cited,  the  difficulty  arising  from  the  lack  of 
an  international  tribunal,  cannot  but  acknowledge 
that  treaties  are  entire  contracts  in  which  the  articles 
depend  the  ones  on  the  others  and  have  the  force  of 
reciprocal  conditions. 

De  Louter,  cited  by  us  with  reference  to  the  treaty 
of  peace,  accepts  the  principle  without  differentiating 
the  principal  and  essential  clauses  in  view  of  the  lack 
of  an  international  tribunal,  and  the  only  thing  which 
he  exacts  is  that  the  right  of  denouncement  be  exer- 
cised within  a  reasonable  time. 

Oppenheim  follows  the  same  opinion  in  Volume  1 
of  his  aforementioned  work,  at  page  626. 

This  rapid  review  proves  to  us  that,  with  the  ex- 
ception of  Wolf,  in  former  times,  followed  by  Funck 
Brentano  and  Sorel,  in  modern  times,  the  authors 
agree  concerning  the  principle  of  the  indivisibility  of 
treaties,  especially  of  the  treaty  of  peace.  The  only 
discrepancy  consists  in  the  reservation  made  by  a 
minority  that  the  breach  of  accessory  or  secondary 
clauses  ought  not  to  be  deemed  to  cause  the  nullity 
of  the  entire  treaty. 

This   reservation   neither   endangers   nor    renders 
equivocal  the  application  of  the  principle. 
— ^Hall  has  found  the  practical  criterion  to  establish 
a  clear  difference  between  the  essential  and  non-es- 
sential clauses.     He  says,  literally : 

All  that  can  be  done  is  to  try  to  find  a  test 
which  shall  enable  a  candid  mind  to  judge 
whether  the  right  of  repudiating  a  treaty  has 

83 


arisen  in  a  given  case.  Such  a  test  may  be 
found  in  the  main  object  of  a  treaty.  There 
can  be  no  question  that  the  breach  of  a  stipula- 
tion which  is  material  to  the  main  object,  or  if 
there  are  several  to  one  of  the  main  objects, 
liberates  the  party  other  than  that  committing 
the  breach  from  the  obligations  of  the  contract ; 
but  it  would  be  seldom  that  the  infraction  of  an 
article  which  is  either  disconnected  from  the 
main  object,  or  is  unimportant,  whether 
originally  or  by  change  of  circumstances,  with 
respect  to  it,  could  in  fairness  absolve  the  other 
party  from  performance  of  his  share  of  the  rest 
of  the  agreement  though  if  he  had  suffered  any 
appreciable  harm  through  the  breach  he  would 
have  a  right  to  exact  reparation  and  an  end 
might  be  put  to  the  treaty  as  respects  the  sub- 
ject-matter of  the  broken  stipulation.  It  would 
of  course  be  otherwise  if  it  could  be  shown  that  a 
particular  stipulation,  though  not  apparently 
connected  with  the  main  object  of  the  treaty, 
formed  a  material  part  of  the  consideration  paid 
_  by  one  of  the  parties. — International  Law,  Sev- 
enth Edition  (1917)  W.  E.  Hall  Cont'd,  p. 
361. 

According  to  this  author,  who  is  considered  one  of 
the  principal  authorities  on  this  point  and  on  the 
clause  "rebus  sic  estantibus,"  total  nullity  ensues  in 
case  of  the  violation  of  one  of  the  articles  of  the 
treaty  of  peace  which  refers  apparently  or  implicitly 
to  the  objects  considered  by  either  party  on  making 
the  treaty;  and  the  partial  nullity  of  the  secondary 
clauses  ensues  when  they  have  been  violated. 

Taylor,  in  his  International  Public  Law,  1901, 
at  page  402,  follows  exactly  the  same  criterion,  quot- 
ing Hall's  words. 

84 


It  is  convenient  that  we  reinforce  our  arguments 
by  citing  some  precedents  of  the  nullity  of  treaties 
due  to  violation  by  one  of  the  parties.  The  diplo- 
matic history  of  the  United  States  offers  us  very  in- 
teresting examples  which  contain  the  emphatical  ex- 
pression of  this  doctrine  by  the  highest  legislative, 
judicial,  diplomatic  and  scientific  authorities  of  this 
Republic. 

The  famous  Kent  said : 

But  then  they  become  newly  acquired  rights, 
and  partake  of  the  operation  and  result  of  the 
new  war.  To  recommence  a  war,  by  breach 
of  the  articles  of  a  treaty  of  peace,  is  deemed 
much  more  odious  than  to  provoke  a  war  by 
some  new  demand  and  aggression ;  for  the  latter 
is  simply  injustice,  but,  in  the  former  case,  the 
party  is  guilty  both  of  perfidy  and  injustice. 
The  violation  of  any  one  article  of  a  treaty, 
is  a  violation  of  the  whole  treaty;  for  all  the 
articles  are  dependent  on  each  other,  and  one  is 
to  be  deemed  a  condition  of  the  other ;  and  a 
violation  of  any  single  article  overthrows  the 
whole  treaty,  if  the  injured  party  elects  so  to 
consider  it.  This  may,  however,  be  prevented 
by  an  express  provision,  that  if  one  article  be 
broken,  the  others  shall,  nevertheless,  continue 
in  full  force.  There  is  a  strong  instance 
in  the  history  of  the  United  States  of  the  anni- 
hilation of  treaties  by  the  act  of  the  injured 
party.  In  1798,  the  Congress  of  that  country 
declared  that  the  treaties  with  France 
were  no  longer  obligatory  on  the  United  States, 
as  they  had  been  repeatedly  violated  on  the  part 
of  the  French  Government,  and  all  just  claims 
for  reparation  refused. — International  Law, 
Kent  (1866)  p.  420. 

85 


The  resolution  of  Congress  which   annulled  the 
treaties  is  the  following: 

"Whereas  the  treaties  concluded  between  the 
United  States  and  France  have  been  repeatedly 
violated  on  the  part  of  the  French  Government, 
and  the  just  claims  of  the  United  States  for  rep- 
aration of  the  injuries  so  committed  have  been 
refused,  and  their  attempts  to  negotiate  an  amic- 
able adjustment  of  all  complaints  between  the 
two  nations  have  been  repelled  with  great  in- 
dignity; and  whereas,  under  authority  of  the 
French  Government,  there  is  yet  pursued 
against  the  United  States  a  system  of  predatory 
violence,  infracting  the  said  treaties  and  hostile 
to  the  rights  of  a  free  and  independent  nation : 

"Be  it  enacted  by  the  Senate  and  House  of 
Representatives  of  the  United  States  of  Amer- 
ica in  Congress  assembled,  That  the  United 
States  are  of  right  freed  and  exonerated  from 
the  stipulations  of  the  treaty  and  of  the  con- 
sular convention  heretofore  concluded  between 
the  United  States  and  France,  and  that  the  same 
shall  not  henceforth  be  regarded  as  legally 
obhgatory  on  the  Government  or  citizens  of  the 
United  States. 

"Approved  July,  7,  1798."—!  U.  S.  Stat.  L, 
578. — International  Law  Digest,  Wharton  2nd 
Edition,  1887,  p.  60. 

And  in  spite  of  the  fact  that  the  foregoing  annul- 
ling resolution  had  internal  effect  only,  Marshall 
said,  in  the  case  of  Chirac  vs.  Chirac,  2  Wheaton, 
272:  "There  is  no  treaty  in  existence  between  the 
two  countries." 

The  representatives  of  the  United  States  sustained 
the  nullity  diplomatically.     Let  us  see  what  Whar- 


ton  says  in  his  International  Law  Digest,  1872,  at 
page  60 : 

The  act  of  Congress  was  sustained  by  the 
American  envoys,  in  a  letter  to  the  French  en- 
voys, dated  at  Paris,  July  23,  1800,  on  the 
ground  of  prior  violation  by  France.  (Infra, 
sec.  248.)  "It  vi^as  remarked  that  a  treaty, 
being  a  mutual  compact,  a  palpable  violation  of 
it  by  one  party  did,  by  the  law  of  nature  and  of 
nations,  leave  it  optional  with  the  other  to  re- 
nounce and  declare  the  same  to  be  no  longer 
obligatory,  and  that  of  necessity,  there  being  no 
common  tribunal  to  which  they  could  appeal, 
the  remaining  party  must  decide  whether  there 
had  been  such  violation  on  the  other  part  as  to 
justify  its  renunciation.  For  a  wrong  decision 
it  would  doubtless  be  responsible  to  the  injured 
party,  and  might  give  cause  for  war;  but  even 
in  such  case  its  act  of  public  renunciation,  being 
an  act  within  its  competence,  would  not  be  a 
void,  but  a  valid  act,  and  other  nations 
whose  rights  might  thereby  be  beneficially  af- 
fected would  so  regard  it. 

That  it  has  become  impossible  for  the  United 
States  to  save  their  commerce  from  the  depreda- 
tions of  French  cruisers  but  by  resorting  to  de- 
fensive measures;  and  that  as,  by  their  Consti- 
tution, existing  treaties  were  the  supreme  law 
of  the  land,  and  the  judicial  department,  who 
must  be  governed  by  them,  is  not  under  the  con- 
trol of  the  executive  or  legislative,  it  was  also 
impossible  for  them  to  legalize  defensive  meas- 
ures, incompatible  with  the  French  Treaties 
while  they  continued  to  exist.  Then  it  was 
that  they  were  formally  renounced.  *  *  * 

"To  the  still  further  suggestion  that  the  laws 
of  nations  admitted  of  a  dissolution  of  treaties 


87 


only  by  mutual  consent  of  war,  it  was  remarked 
by  the  undersigned  that  their  conviction  was 
clearly  otherwise,  and  that  Vattel  in  particular 
the  best  approved  of  modern  writers,  not  only 
held  that  a  treaty  violated  by  one  party  might 
for  that  reason,  be  renounced  by  the  other,  but 
that  where  there  were  two  treaties  between  the 
same  parties,  one  might  be  rendered  void  in  that 
way,  and  the  other  remain  in  force;  whereas 
when  war  dissolves,  it  dissolves  all  treaties  be- 
tween the  parties  at  the  time." — Messrs.  Ells- 
worth, Davie,  and  Murray  to  the  French  ne- 
gotiators, July  23,  1800,  Sen.  Ex.  Dec.  1021, 
19th  Cong.,  1st  Sess.,  pp.  612,  613.     See  infra 
section  148. 
Referring  to   the  contention   advanced   in   Court 
that  the  treaty  of  1783  had  been  suspended  and  abro- 
gated by  the  attitude  of  Great  Britain  on  not  execut- 
ing certain  parts  of  it,  Judge  Iradell  said: 

"It  is  a  part  of  the  law  of  nations,  that  if  a 
treaty  be  violated  by  one  party,  it  is  at  the  op- 
tion of  the  other  party,  if  innocent,  to  declare, 
in  consequence  of  the  breach,  that  the  treaty  is 
void.  If  Congress,  therefore  (who,  I  conceive, 
alone  have  such  authority  under  our  govern- 
ment), shall  make  such  a  declaration,  .  .  . 
I  shall  deem  it  my  duty  to  regard  the  treaty  as 
void,  .  .  .  But  the  same  law  of  nations  tells 
me,  that  until  that  declaration  be  made,  I  must 
regard  it  (in  the  language  of  the  law)  valid  and 
obhgatory."— Ware  v.  Hylton  (1796),  3  Dal- 
las, 199,  261. 

Referring  to  the  same  treaty  of  1783  with  Great 
Britain,  Madison,  accepting  the  traditional  theory, 
affirmed  the  right  of  annulling  it;  but  he  added  that 
the  act  of  annulment  ought  to  be  performed  not  only 


by  the  Senate  and  the  President  but  also  by  the  entire 
legislative  body. 

That  great  American  said : 

"That  a  breach  on  one  side  (even  of  a  single 
article,  each  being  considered  as  a  condition  of 
every  other  article)   discharges  the  other,  is  as 
httle  questionable;   but   with   this   reservation, 
that  the  other  side   is  at   liberty   to   take   ad- 
vantage or  not  of  the  breach,  as  dissolving  the 
treaty.     Hence    I    infer   that   the    treaty   with 
Great  Britain,  which  has  not  been  annulled  by 
mutual   consent,   must  be   regarded   as   in   full 
force  by  all  on  whom  its  execution  in  the  United 
States  depends,  until  it  shall  be  declared  by  the 
party  to  whom  a  right  has  accrued  by  the  breach 
of  the  other  party  to  declare,  that  advantage  is 
taken  of  the  breach,  and  the  treaty  is  annulled 
accordingly.     In  case  it  should  be  advisable  to 
take  advantage  of  the  adverse  breach,  a  question 
may    perhaps    be    started    whether    the    power 
vested  by  the  Constitution  with  respect  to  treat- 
ies in  the  President  and  Senate  makes  them  the 
competent  judges,  or  whether,  as  the  treaty  is  a 
law,  the  whole  legislature  are  to  judge  of  its 
annulment,  or  whether,  in  case  the  President 
and  Senate  be  competent  in  ordinary  treaties, 
the  legislative  authority  be  requisite  to  annul 
a    treaty   of    peace,    as   being   equivalent    to    a 
declaration   of   war,    to   which    that    authority 
alone  by  our  constitution,  is  competent." — Mr. 
Madison  to  Mr.   Edmund  Pendleton,  Jan.   2, 
1791,  1  Madison's  Works,  523,  524. 

Madison's  doctrine  concerning  the  optional  right 
of  the  party  damnified  by  the  violation  of  a  treaty 
to  annual  it  or  to  keep  it  in  force  is  upheld  by  Kent. 
The  latter  says: 

89 


"Where  a  treaty  is  violated  by  one  of  the 
contracting  parties,  it  rests  alone  with  the  in- 
jured party  to  pronounce  it  broken,  the  treaty 
being  J  in  such  case,  not  absolutely  void,  but 
voidable,  at  the  election  of  the  injured  party, 
who  may  waive,  or  remit  the  infraction  com- 
mitted, or  may  demand  a  just  satisfaction,  the 
treaty  remaining  obligatory  if  he  chooses  not  to 
come  to  a  rupture.     1  Kent's  Comm,  174," 

The  United  States,  pursuant  to  that  optional  right 
which  appears  in  its  diplomatic  tradition,  in  some 
cases  did  not  decide  to  annul  the  treaties  which  had 
been  violated  and  permitted  their  continuation.  Such 
was  the  case  of  the  Clayton-Bulwer  Treaty  of  1850, 
in  which  they  abandoned  their  right  to  terminate  the 
pact. 

In  1917,  due  to  the  European  war,  an  analogous 
case  presented  itself  in  the  violation  of  the  treaty  with 
Germany  by  the  latter  country.  Although  the 
American  Government  did  not  declare  the  nullity, 
Secretary  Lansing  again  affirmed  the  traditional 
theory  which  confers  the  right  of  denouncing  a  treaty 
on  account  of  the  violation  of  one  of  its  parts. 

Secretary  Lansing  said : 

"It  would  be  manifestly  unjust  and  inequit- 
able to  require  one  party  to  any  agreement  to 
observe  its  stipulations  and  to  permit  the  other 
party  to  disregard  them.  It  would  appear  that 
the  mutuality  of  the  undertaking  has  been 
destroyed  by  the  conduct  of  the  German  au- 
thorities." See  Jesse  S.  Reeves,  "The  Prus- 
sian-American Treaties,"  Am.  J.,  XI,  475, 
501-507. 


90 


Cheney  Hyde,  in  his  International  Law,  Chiefly  as 
Interpreted  and  Applied  by  the  United  States,  Vol. 
2,  at  page  82,  summarizes  the  doctrine  consecrated 
not  only  by  the  principles  of  science  but  also  by  the 
practice  of  this  Republic : 

It  may  be  futile  to  attempt  to  enunciate  rules 
pointing  decisively  to  the  circumstances  when 
abrogation  by  one  party  is  to  be  excused.  It  is 
to  be  acknowledged,  however,  that  failure  of  a 
contracting  State  to  observe  a  material  stipula- 
tion of  its  agreement  is  deemed  to  justify  an- 
other party  to  take  such  a  step. 

To  end  this  chapter,  suffice  it  to  say  that  the 
nullity  of  a  treaty,  on  account  of  the  violation  of  one 
of  its  stipulations  by  one  of  the  contracting  parties, 
has  been  accepted  by  the  Chilean  diplomats  and 
authors.  Gonzalo  Bulnes,  referring  to  Maximo 
Lira,  says  that  the  latter  declared  that  the  treaty  of 
Ancon  is  one  in  all  its  parts  and  that  one  of  its  dis- 
positions cannot  be  violated  without  affecting  the 
others.  All  the  dispositions,  said  Lira,  form  an  indi- 
visible whole.  Each  one  of  them  is  incorporated  in 
the  others  and  any  one  of  them  is  a  condition  of  the 
rest.  The  note  of  Plenipotentiary  Lira  to  which 
Bulnes  refers  contained  interesting  quotations  from 
Grotius,  Calvo,  Bluntschli  and  Wheaton. 

Mr.  Migel  Cruchaga,  in  his  International  Law, 
at  page  307,  also  affirms  the  principle  of  the  indi- 
visibility of  treaties  on  saying  that  the  treaty  of 
August  6,  1874  having  been  broken  because  Bolivia 
had  not  fulfilled  the  stipulated  obligations,  Chile 
regained  the  rights  which  it  legitimately  asserted 
prior  to  the  treaty  of  1866. 
91 


Orrego  Luco  declares  emphatically: 

...  If,  according  to  civil  law,  the  non-ful- 
filment by  one  of  the  parties  gives  to  the  other 
the  right  to  rescind  a  contract,  this  right  ap- 
plies, with  even  greater  propriety,  to  contracts 
of  an  international  nature,  which  possess 
greater  solemnity  and  importance,  deal  with 
complex  and  higher  interests,  are  concluded 
with  greater  deliberation  and  with  a  deeper  in- 
vestigation. 

If  the  breaking  of  a  private  contract  is  a  grave 
matter,  that  which  refers  to  an  international 
agreement  is  exceedingly  grave  and  confers  on 
the  other  side  the  right  to  reassume  its  original 
juridical  status,  always  provided  that  the  stipu- 
lations agreed  upon  should  not  have  been  ful- 
filled.— Luis  Orrego  Luco,  Minister  of  Justice, 
Publicist,  "The  International  Problems  of 
Chile,"  Santiago,  1900. 

To  sum  up,  we  can  affirm  the  indivisible  unity  of 
the  treaty  of  Ancon  not  only  by  reason  of  the  scien- 
tific principles  and  precedents  of  American  public 
law  which  we  have  recalled  but  by  the  explicit  ac- 
ceptance of  that  character  on  the  part  of  Chile  itself. 


92 


Chapter  IX. 

The  Juridical  Solution  of  the  Problem  Created  by 
the  Violations  of  the  Treaty  of  A  neon. 

We  have  proven  that  the  treaty  of  Ancon  is  one 
and  indivisible  and  that  Chile  has  violated  the  third 
clause  producing  the  total  nullity  of  the  pact. 
Peru's  right  to  declare  that  nullity  is  clear.  Even 
the  most  prudent  and  conservative  of  international- 
ists exact  as  conditions  of  the  right  to  make  that 
declaration  the  two  following  only:  first,  that  the 
violations  be  grave;  and  second,  that  the  party  damni- 
fied have  requested  the  other  party  to  fulfill  the 
treaty.  Those  conditions  have  happened  in  the  pres- 
ent case  as  regards  Peru. 

The  indefinite  postponement  of  the  plebiscite,  the 
expulsion  en  masse  of  the  Peruvian  population  not 
only  from  Tacna  and  Arica  but  from  Tarapaca,  the 
Tarata  question,  and  the  substitution  of  martial  law 
for  the  regime  of  Chilean  legislation  as  well  as  the 
acts  of  sovereignty  which  Chile  has  usurped  while 
being  simply  the  possessor,  have  a  character  of  un- 
questionable graveness. 

No  one  can  doubt,  respecting  the  treaty  of  Ancon, 
that  all  that  referring  to  the  provinces  of  Tacna 
and  Arica  constituted  for  Peru  the  principal  object 
of  the  agreement.  It  is  sufficient  to  recall  that  the 
war  was  prolonged  on  account  of  these  provinces  and 
that  the  discussions  of  the  negotiators  dealt  princi- 
pally with  them.  We  refer  to  the  following  docu- 
ments: The  Bases  Proposed  to  General  Iglesias  and 
Rejected    by    Him,    and    the    Declarations   of    Mr. 

93 


Novoa  Concerning  the  Attitude  of  the  Peruvian  Ne- 
gotiators regarding  Tacna  and  Arica,  (Documen- 
tos  Esenciales  del  Debate  Peruano-Chileno,  Ds.  40 
and  41,  respectively.) 

The  second  condition,  namely,  the  requests  made 
to  Chile  to  perform  the  treaty  need  not  be  proven 
either.  There  is  the  history  of  the  negotiations. 
There  has  not  been  any  Peruvian  mission  accredited 
before  the  Government  of  Santiago,  between  1892 
and  1910,  which  did  not  have  for  its  exclusive  object 
the  asking  of  Chile  for  an  agreement  as  to  the  plebis- 
cite and  the  discontinuance  of  and  satisfaction  for 
the  measures  which,  in  violation  of  the  pact,  it  dic- 
tated regarding  Tacna  and  Arica. 

Peru's  constancy  and  patience  have  been  exem- 
plary in  this  matter.  When  the  policy  called  chileni- 
zation  was  started,  the  Peruvian  plenipotentiary,  Mr. 
Chacaltana,  addressed  repeated  notes  to  the  San- 
tiago Chancellery ;  the  latter  delayed  the  answers  in- 
definitely only  to  answer  finally  in  the  negative  or 
evasively.  It  was  only  after  the  rejection  of  the 
treaty  of  1898  that  Peru  decided  to  break  off  the 
diplomatic  relations  with  Chile,  denouncing  to 
America  "the  situation  which  was  arising  in  the 
origin  and  subsistence  of  which  it  had  no  responsi- 
bility." 

Owing  to  the  Chilean-Bolivian  treaty  of  1904, 
Peru  again  let  its  protests  be  heard.  Diplomatic 
negotiations  were  then  initiated  which  meant  new 
efforts  on  the  part  of  Peru  to  the  end  of  inducing 
Chile  to  fulfill  the  pacts.  Those  negotiations  were 
prolonged  fruitlessly  until  1910. 

94 


Chile  maintained  itself  invariably  inflexible  in  its 
line  of  conduct  of  ignoring  the  treaty  and  the  Peru- 
vian reclamations.  The  outrages  and  violence  con- 
tinued to  become  graver  until  finally  the  breach  of 
diplomatic  relations  was  produced. 

The  juridical  situation  which  arose  between  the 
two  countries  was  practically  a  situation  of  war 
without  military  hostilities.  Chile  continued  to 
persecute  the  Peruvian  population.  Peru's  repeated 
protests  reserved  its  rights  to  the  denouncement  of 
the  pact.  The  definitive  proclamation  of  that  de- 
nouncement did  not  follow  immediately,  however, 
Peru  preferring  to  follow  a  line  of  prudent  expecta- 
tion in  spite  of  the  fact  that  there  was  no  hope  that 
Chile  would  change  its  course  and  would  be  inclined 
to  give  satisfaction  for  the  damages  caused  and  to  ful- 
fill the  pact. 

The  European  war  caused  in  Chile  an  affirmance 
of  the  latter's  imperialistic  policy.  The  Chilean  peo- 
ple and  Government  believed  in  the  German  victory. 
The  cause  which  was  being  argued  in  Europe  be- 
tween the  Allies  and  the  Central  Empires  was  the 
same  involved  in  the  dispute  between  Peru  and 
Chile. 

On  the  cessation  of  the  war  by  the  victory  of 
democracy  and  the  principle  of  nationalities,  the 
Chilean  Government  ought  to  have  become  reason- 
able and  to  have  understood  that  an  atmosphere  had 
been  created  in  the  world  which  was  precisely  con- 
trary to  that  which  it  expected  to  consohdate  its  sec- 
ond conquest,  namely,  that  of  Tacna  and  Arica.  But 
instead  of  this,  immediately  following  the  armistice, 

95 


as  a  result  of  rancor  and  spite,  the  crimes  which  were 
being  committed  in  Tacna,  Arica  and  Tarapaca  in- 
creased. The  expulsion  en  masse  of  the  remainder 
of  the  Peruvian  population  from  the  unlawfully  held 
territories  was  then  decided  upon. 

The  consular  relations  between  Peru  and  Chile 
were  broken.  The  moment  had  arrived  of  exercis- 
ing the  unquestionable  right  which  we  had  of  de- 
claring the  treaty  null.  Peru  had  fulfilled  even  ex- 
cessively the  obligation  of  requesting  Chile  to  per- 
form the  treaty.  And  this  country  had  already  com- 
mitted its  last  outrages  against  the  Peruvian  popula- 
tion of  the  southern  territories. 

The  Peruvian  petition  for  the  revision  of  the 
treaty  was  presented  to  the  League  of  Nations.  Peru 
has  withdrawn  it  temporarily,  reserving  the  right  of 
presenting  it  again  at  a  more  opportune  time. 

The  Peruvian  Constituent  Assembly  of  1919  gave 
entire  solemnity  to  the  denouncement  of  the  treaty 
by  adopting  a  resolution  as  to  its  caducity  identical 
in  its  spirit  and  similar  in  its  form  to  the  resolution 
adopted  by  the  American  Congress  concerning  the 
annulment  of  the  treaties  with  France,  which  reso- 
lution we  have  quoted.  In  full  conformity  with 
that  resolution  of  the  Assembly,  the  Peruvian  De- 
partment of  State  said  in  the  Exposition  of   1921 : 

"It  follows  clearly  and  definitively,  from  the 
reasons  contained  in  this  Exposition :  first,  that 
the  treaty  of  peace  signed  by  Peru  and  Chile  on 
October  20,  1883,  must  be  revised  and  the 
province  of  Tarapaca  returned  to  Peru  uncon- 
ditionally ;  second,  that  the  provinces  of  Tacna 
and  Arica  must  likewise  be  returned  to  Peru 

96 


without  any  kind  of  indemnity  or  payment  on 
its  part." 

Although  Peru  could  juridically  have  declared  the 
nullity  of  the  treaty  from  the  moment  when  Chile 
withdrew  its  approval  of  the  pact  of  1898  concerning 
the  bases  of  the  plebiscite  and  accentuated  the  policy 
called  chilenization,  not  to  have  done  it  then  and  to 
have  followed  the  pohcy  of  urging  Chile  until  the 
exhaustion  of  all  efforts  does  credit  to  its  cause 
morally. 

The  atmosphere  of  international  justice  which  the 
great  war  created  did  not  exist  at  that  moment,  and 
the  practical  way  of  reaching  the  juridical  solution 
of  the  problem  which  the  denouncement  should 
create  was  not  open. 

The  favorable  opportunity  has  presented  itself  af- 
terwards. The  League  of  Nations'  covenant  which 
Chile  had  found  itself  obliged  to  accept  against  its 
will  creates  a  juridical  bond  and  a  situation  within 
which  solutions  of  law  are  possible.  Even  aside 
from  the  League,  a  principle  of  international  solidar- 
ity has  been  affirmed  in  America,  as  a  consequence 
of  the  war,  which  today  permits  the  frankest  and 
most  radical  treatment  of  all  questions,  a  treatment 
which  in  former  times  would  have  disturbed  the 
peace  of  the  continent. 

In  the  face  of  the  Peruvian  thesis  regarding  the 
breach  of  the  treaty  and  its  caducity,  Chile  sustains 
the  theory  of  performing  it  within  the  interpretation 
which  it  gives  it  and  pretends  that  a  veil  be  drawn 
over  the  time  elapsed  and  the  violations  committed 
during  it. 

97 


In  spite  of  the  radical  opposition  between  the 
Peruvian  and  the  Chilean  theses,  they  have  a  point 
in  common.  We  all  agree  that  there  are  stipula- 
tions in  the  treaty  of  Ancon,  essential  stipulations, 
which  have  not  been  fulfilled. 

The  difference  lies  in  the  origin  and  consequences 
of  that  non-fulfillment.  Peru  affirms  the  responsi- 
bility of  Chile  and  the  consequent  effects  on  the  gen- 
eral validity  of  the  treaty.  Chile  attributes  the  non- 
fulfillment to  the  material  impossibility  of  an  agree- 
ment as  to  the  means  of  execution  of  the  pact. 

These  differences  are  matter  proper  for  arbitra- 
tion which  must  comprise  not  only  the  point  of  view 
of  one  of  the  parties,  but,  in  the  alternative,  the 
points  of  view  of  both. 

The  judicial  solution  to  which  Peru  and  Chile  are 
bound  as  members  of  the  League  of  Nations  has  been 
recommended  for  these  cases  by  all  the  authors. 

They  all  agree  that  every  dispute  regarding  the 
violation  of  agreements  is  matter  proper  for  arbitra- 
tion. 

Let  us  see  what  Bernard  says,  in  his  famous  Lec- 
tures on  Diplomacy,  1868,  page  174: 

On  the  question  then,  whether  an  alleged  con- 
tract is  or  is  not  a  Treaty,  International  Law 
can  and  usually  does  speak  pretty  plainly,  and 
it  assumes  the  general  rule  that  Treaties  are 
binding.  The  practice  of  making  Treaties  is 
necessarily  based  on  that  assumption.  But 
there  may  be  exceptions  to  that  rule,  and  par- 
ticular difficulties  in  applying  it;  and  hence 
arise  classes  of  questions  on  which  International 
Law  does  not,  and  cannot,  speak  plainly.     Is 

98 


the  Treaty  itself  unjust  to  third  parties,  or  to 
any  of  the  contracting  parties  themselves? 
Was  it  extorted  by  unjust  violence,  or  procured 
by  duplicity?  Has  the  obligation  been  dis- 
solved by  the  act  of  either  party,  or  extinguished 
by  change  of  circumstances  ?  What  stipulations 
are  to  be  deemed  important,  so  that  a  breach  of 
one  will  discharge  the  others?  In  disputes 
about  the  causes  foederis — where,  for  example, 
your  ally  demands  your  aid,  and  you  believe 
him  to  be  in  the  wrong — what  is  to  be  done  ? 

Here  is  a  handful  of  questions  of  different 
sorts,  which  have  this  in  common,  that  general 
rules  can  go  but  a  little  way  in  disposing  of 
them.  What  they  demand  is  an  arbiter.  There 
are  under  every  system  of  private  law,  beside 
the  general  mass  of  ordinary  questions  of  fact, 
questions  such  as  these — what  constitutes  rea- 
sonable care,  reasonable  time,  a  bona  fide  belief, 
ordinary  prudence  or  firmness,  undue  influence, 
gross  hardship,  and  the  like — which  law  is 
obliged  to  surrender  practically  to  unassisted 
common  sense.  The  chief  service  it  performs 
in  such  cases  is  to  provide  a  disinterested  arbi- 
ter whose  dedsion  is  final. 

We  have  seen  in  the  foregoing  quotations  that  the 
general  practice  of  arbitration  is  rendering  the  prob- 
lem which  the  violation  of  treaties  or  their  denounce- 
ment for  non-fulfillment  create,  less  grave.  The 
problem  shall  be  solved  by  establishing  a  judicial  pro- 
cedure, such  as  Fiore  proposes,  for  all  cases  of  dero- 
gation of  treaties. 

Let  us  recall  the  principles  which  the  latter  has 
set  forth  in  this  regard  in  his  Codified  International 
Law,  annotated  by  Borchard,  1918,  at  page  348: 


99 


Judicial  Proceedings  for   the  Abrogation    of  a 
Treaty. 

831.  The  abrogation  of  a  treaty  ought  to  be 
pronounced  by  a  competent  court,  at  the  formal 
instance  of  a  signatory  party. 

832.  The  right  of  a  part>"  to  request  the  an- 
nulment of  a  treat}'  must  be  considered  as  well 
founded,  when  it  is  proved  and  recognized  that 
the  treat\"  lacks  one  of  the  essential  conditions 
required  by  international  la^v  for  its  validit}'. 

The  judicial  or  arbitral  solution  is  recommended 
also  by  Denis  P.  Miers  in  his  monograph  on  the 
\-iolation  of  treaties.     Let  us  hear  his  words : 

'"These  closely  connected  forms  of  notation 
are  particularly  dangerous  to  international  or- 
der (dealing  with  non-execution  and  disre- 
gard). As  to  separate  engagements,  no  grave 
question  is  likely  to  arise  from  them,  because  the 
injured  contractant  is  sure  to  complain  and 
the  resulting  negotiations,  reclamation  or  arbi- 
tration is  almost  certain  to  satisfv  both." — 
A.  J.  I.  L.,  p.  11,  806. 

Cheney  Hyde,  in  his  aforementioned  work,  at 
page  88.  says  the  following  which  hai  perfect  appli- 
cation to  the  present  case : 

Disagreement  between  the  parties  concerning 
the  interpretation  of  a  treaty  may  give  rise  to 
controversy  as  to  whether  such  a  stipulation  has 
been  broken.  Thus  the  very  existence  of  con- 
ditions sufficing  to  justif\'  repudiation  may  be 
sincerely  questioned  by  the  partv"  whose  conduct 
is  regarded  by  another  as  warranting  such  ac- 
tion. Should  there  be  habitual  recourse  to  ar- 
bitration, either  through  the  voluntary  or  con- 
strained action  of  the  parties,  in  cases  involving 

100 


the  interpretation  of  a  treat}-  where  no  other 
amicable  means  sufficed  to  bring  about  accord, 
the  resulting  practice  would  check  the  success 
of  the  effort  of  dishonest  States  to  utilize  col- 
orable grounds  as  a  pretext  for  disregarding 
their  contractual  obligations. 

It  may  be  observed  that  the  Covenant  of  the 
League  of  Nations  imposes  sharp  penalties  upon 
a  member  which  resorts  to  war  in  disregard  of 
certain  specified  undertakings  pertaining  to  the 
adjustment  of  international  disputes.  It  is  sig- 
nificant that  the  check  upon  recourse  to  such  a 
mode  of  self-help  is  designed  to  leave  little  room 
for  the  contention  of  a  contracting  State  that 
circumstances  have  justified  its  abrogat  on  of 
obligations  under  the  Covenant. 

There  is  not  the  least  doubt,  then,  that,  at  the 
present  international  moment,  the  part}'  that  inter- 
poses a  reclamation  on  account  of  the  violation  of  a 
treaty  and  asks  its  re\-ision  or  nulht}"  is  not  bound, 
as  at  the  time  which  Koch  considered,  to  declare 
war  as  a  logical  consequence  of  the  denouncement 
but  to  petition  for  the  arbitration  and  the  application 
of  the  rules  of  law. 

In  this  arbitration  the  difficult}-  lies  in  fixing  the 
terms  of  the  agreement.  The  culpable  party  u-ill 
make  every  effort  to  obtain  the  exclusion  from  the 
agreement  of  the  facts  which  its  culpahilit}"  involves 
and  to  limit  or  exclude  the  power  of  the  arbiter  to 
expressly  declare  it. 

Thus,  the  arbitral  solution  would  appear  to  be  im- 
possible. The  remedy  is  also  prescribed  by  the 
science.  It  consists  in  giving  the  arbiter  the  right 
of  fixing  the  terms  of  the  agreement.     Bonfils.  in  his 

101 


aforementioned  work,  at  page  611,  says  in  this  re- 
spect : 

"Some  are  of  opinion  that  the  tribunal  has  no 
right  to  establish  its  own  jurisdiction.  An 
agent  could  not  himself  fix  the  meaning  and  ex- 
tent of  his  authority.  If  doubts  arise  the  arbi- 
ters must  resort  to  their  principals  and  ask 
them  for  the  enhancement  of  their  powers  and 
the  clearer  fixation  of  the  object  of  the  agree- 
ment. Others  think  differently.  At  common 
law,  the  tribunal  to  which  a  dispute  is  sub- 
mitted, has  the  right  of  examining  whether  or 
not  it  is  within  its  jurisdiction  as  established  by 
law.  Why  should  not  the  same  happen  in  the 
case  of  an  arbitral  tribunal?  The  only  differ- 
ence lies  that  instead  of  the  law  it  is  the  agree- 
ment that  has  to  be  interpreted.  .  .  . 

"The  Hague  Conventions  of  1907  and  1909 
have  consecrated  the  latter  opinion  in  articles 
48  and  73.  The  tribunal  is  authorized  to  de- 
termine its  jurisdiction  interpreting  the  agree- 
ment, as  well  as  the  other  treaties  that  may  be 
invoked  in  the  matter,  and  invoking  the  prin- 
ciples of  law." 

With  regard  to  the  constitution  of  the  permanent 
court,  article  53  of  the  Hague  Convention  says: 

"The  permanent  court  is  competent  to  fix  the 
terms  of  the  agreement  if  the  parties  resort  to 
it  for  that  purpose." 

This  has  permitted  De  Louter  in  Volume  2  of  his 
aforementioned  work,  at  page  153,  to  affirm  the  fol- 
lowing : 

"The  jurisdiction  of  the  arbitral  court  is 
fixed  by  the  agreement  and  outside  of  that  it 
may  be  determined  by  the  court  itself." 

102 


The  objection  will  be  made  that  it  is  difficult  to 
have  the  States  give  the  arbiter  so  much  authority, 
but  this  objection  disappears  if  it  is  taken  into  ac- 
count that  the  trend  of  ideas  on  international  law 
and  the  constitution  of  the  League  of  Nations,  as 
well  as  the  frequency  of  international  conferences, 
result  in  the  presentment  of  problems  by  the  simple 
petition  of  the  parties. 

In  a  perhaps  not  far  off  future,  it  will  be  the  sim- 
ple presentment  by  one  party  that  will  estabhsh  the 
jurisdiction  of  the  judge  or  tribunal,  without  need 
of  resorting  to  the  signing  of  an  agreement  of  which 
the  stronger  country  may  avail  itself  to  elude  or  re- 
strict the  settlement  of  an  international  problem. 

As  to  the  nature  of  the  arbitration,  it  is  evident 
that,  it  being  a  matter  of  the  non-fulfillment  of  in- 
ternational pacts,  there  is  room  for  none  other  than 
the  judicial  arbitration. 

The  objections  which  writers  make  generally  to 
the  equity  arbitration  are  accentuated  as  regards  the 
application  of  that  recourse  to  problems  strictly  of 
law  as  are  those  which  arise  from  the  non-fulfillment 
of  treaties.  Jolin  Jaquemins,  quoted  by  Bonfils  in 
his  aforementioned  work  at  page  612,  said: 

"It  would  be  to  falsify  this  notion,  that  is, 
the  application  of  international  law,  and  to  en- 
danger this  application  to  admit  beforehand  in 
the  agreement  itself  the  possibility  of  a  solution 
dictated  not  by  law  but  by  the  arbitrary  appre- 
ciation of  the  conveniences  of  the  parties." 

Continuing  this  train  of  thought  Jaquemins  shows 
that  an  equity  arbiter  chooses  the  easy  way  of  divid- 

103 


ing   the   difference   into    two.     Then   pointing  out 
another  danger  he  adds: 

"However  little  the  clause  of  amicable  com- 
position be  used  in  some  agreements,  it  shall  not 
be  long  in  becoming  usual,  and,  when  the  arbi- 
ter propose  it,  it  shall  seem  incorrect  and  im- 
polite to  refuse  it.  And  if  the  arbiter  is  the 
sovereign  of  a  great  State,  it  shall  not  be  pos- 
sible to  make  such  refusal  without  serious  in- 
convenience. On  the  other  hand,  the  contract- 
ing party  that  propose  and  wish  the  clause  of 
amicable  composition  shall  be  that  one  of  the 
two  that  be  less  sure  of  its  right." 

Experience  has  proved,  besides,  that  equity  arbi- 
trations result  in  solutions  \vithout  moral  authority 
and  have  produced  in  many  cases  the  grave  effect  of 
causing  the  principle  of  arbitration  to  lose  prestige. 

Hence  it  is  not  possible  under  any  concept  to  admit 
any  arbitration  other  than  the  juridical  arbitration 
for  the  solution  of  the  problem  of  the  Pacific. 

We  have  not,  in  this  chapter,  considered  the  pos- 
sibility of  deciding  the  problem  created  by  the  non- 
fulfillment of  the  treaty  of  Ancon  without  the  dif- 
ficulties of  an  arbitral  agreement. 

We  have  recalled  that  Peru  and  Chile  are  mem- 
bers of  the  League  of  Nations  and  that  Peru  pre- 
sented before  it  the  petition  for  the  revision  of  the 
treaty. 

Chile  has  denied  the  jurisdiction  of  the  League 
over  this  petition  as  well  as  over  that  presented  by 
Bolivia  concerning  the  revision  of  the  treaty  of  1904. 

Dr.  Victor  M.  Maurtua,  in  his  recent  book,  has 
proved  in  a  definite  manner  that  the   League  has 


104 


jurisdiction  over  these  matters,  upholding  the  correct 
interpretation  of  article  19.  The  Chilean  Delega- 
tion denies  that  jurisdiction,  relying  on  doctrines 
which  involve  practically  the  annulment  of  said 
article  and  which  reduce  the  powers  of  the  League, 
as  regards  conflicts  of  this  nature,  to  such  an  extent 
that  the  institution  created  by  the  treaty  of  Ver- 
sailles is  completely  falsified. 

Whatever  be  the  obstacles  that  may  be  found  in 
the  evolution  of  international  law,  it  is  already  clear 
that  the  points  relative  to  the  non-fulfillment  of 
international  treaties  and  their  denouncement  shall 
find  a  solution  of  law  through  the  existing  League  of 
Nations  or  through  the  system  of  conferences  or  con- 
versations prior  to  the  breaking  out  of  the  conflict  or 
through  the  influence  of  an  institution,  such  as  the 
association  of  nations  planned  by  President  Harding, 
which  may  replace  or  comprise  the  present  League. 

The  very  invitation  of  President  Harding  to  the 
Governments  of  Peru  and  Chile  is  proving  to  us  the 
truth  of  our  assertion.  Whatever  be  the  si'c*^ess  of 
these  conferences,  the  current  of  opinion  which  exists 
in  America  towards  the  solution  of  the  questions 
pending  among  the  American  countries,  by  reason 
and  not  by  force,  as  Secretary  Hughes  has  said,  shall 
not  be  checked. 

We  need  not  consider  the  reasons  that  the  Peru- 
vian Delegation  at  Washington  may  have  had  for 
modfying  the  petition  which  Peru  presented  to  the 
League  of  Nations  and  withdrew  provisionally,  re- 
serving to  itself  the  right  of  presenting  it  at  another 
time,   arid   for  proceeding  in   discordance  with   the 

105 


< 


declarations  of  the  Peruvian  Constituent  Assembly 
and  with  the  last  documents  of  that  Country's  Chan- 
cellery, by  petitioning  for  the  arbitration  concerning 
Tacna  and  Arica  only ;  but  we  must  say  that  such  a 
modification  of  th^  terms  of  the  problem,  Chile  not 
having  accepted  the  proposed  arbitration,  cannot 
modify  nor  compromise  our  right  to  sustain  the  null- 
ity of  the  treaty. 

The  Peruvian  formula,  unfortunately  wrongly 
expressed,  which  involves  the  partial  nullity  of  the 
treaty  only,  that  is,  the  caducity  of  the  third  clause, 
is  explained  only  by  the  concept  of  a  kind  of  tacit 
agreement  between  the  two  countries  to  give  up 
their  original  positions:  that  of  strict  right  by 
Peru  and  that  of  advanced  imperiahsm  by  Chile; 
tacit  agreement  which  the  Chilean  Delegation,  fol- 
lowing the  tradition  of  disloyalty  and  duplicity  of 
the  diplomacy  of  Chile,  has  violated.  This  being 
the  concept  which  the  presentation  of  that  transac- 
tional formula  has  inspired,  it  can  be  affirmed  that  it 
does  not  bind  Peru  absolutely  and  that  it  does  so  even 
less  after  Chile,  maintaining  itself  firm  on  the  point 
relative  to  the  plebiscitary  procedure,  has  rejected 
the  arbitration  restricted  to  the  third  clause. 

The  American  opinion  to  the  effect  that  that  plebis- 
cite, even  though  held  within  the  rules  which  an 
impartial  arbiter  should  fix,  would  be,  after  the  post- 
ponement for  twenty-eight  years  during  which  Chile 
has  transformed  the  conditions  of  the  territory  rad- 
ically and  violently,  the  consecration  of  a  conquest 
under  the  cover  of  a  doubly  hypocritical  cloak  of  a 


N  f  ,'^Cy  :  /SS4  106  <:::^^^c4if,^^A  7 


procedural  arbitration  and  of  a  delayed  vote,  needs 
no  illustration. 

The  principle  of  arbitration  restricted  to  the  plebis- 
citary procedure  can  neither  cover  nor  render  legiti- 
mate the  offenses  committed  during  such  a  long 
period  of  time  nor  the  flagrant  violations  of  the  pact. 
Such  an  arbitration  vrould  be  simply  to  procure  the 
authorized  and  impartial  legalization  of  the  policy 
called  chilenization. 

Peru  cannot  accept  transactions  nor  discussions  on 
the  secondary  ground  of  the  material  interests  or  of 
the  political  conveniences.  The  Peruvian  national 
sentiment  does  not  desire  but  the  total  settlement  of 
the  problem  of  the  Pacific  by  means  of  a  juridical 
solution  and  would  consider  the  very  arbitration  pro- 
posed by  its  delegation  as  a  national  misfortune. 

There  is  no  advantage  for  Peru  in  hastening  the 
solution  of  this  problem.  From  the  juridical  point 
of  view,  the  slow  but  sure  evolution  of  international 
justice  is  favorable  to  it.  From  the  point  of  view  of 
the  influences  of  another  nature,  the  development  of 
its  economic  forces  and  of  its  still  untouched  re- 
sources, present  to  it  an  alluring  future  of  culture  and 
of  power. 

Very  different  is  the  interest  of  Chile.  The  peti- 
tions of  Bolivia  and  Peru  to  the  League  of  Nations, 
the  latter  withdrawn  provisionally,  and  the  former 
postponed,  have  destroyed,  from  the  juridical  point 
of  view,  the  situation  which  was  created  for  Chile 
by  the  pacts  of  1883  and  of  1904  which  Chile  itself 
has  violated. 

To  maintain  a  situation  of  fact  as  a  substitute 


107 


for  a  juridical  situation  which  has  ceased,  the  Gov- 
ernment of  Chile  is  compelled  to  continue  the  policy 
of  armaments  which  it  initiated  in  America. 

At  the  same  time  a  serious  economic  crisis  due  to 
the  permanent  deficit,  which  amounts  to  more  than 
half  of  its  revenue,  sets  over  that  country.  This 
fiscal  situation  is  bound  to  result  in  a  profound  po- 
litical crises. 

The  enormous  injustices  committed  in  the  war  of 
1879,  which  injustices  Chile  could  have  attenuated 
by  returning  Tacna  and  Arica  to  Peru  and  giving  a 
port  to  Bolivia,  are  aggravated  by  the  lapse  of  time 
and  cannot  subsist. 

The  slow  forces  which  elaborate  the  restoration 
of  right  are  similar  to  those  which  silently  work  to 
repair  the  broken  equilibrium  of  nature. 

The  ample  judicial  arbitration  of  the  entire  prob- 
lem of  the  Pacific  could  settle  in  advance  today  what 
would  unavoidably  be  the  work  of  organic  forces  in 
a  not  far  off  future. 


108 


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